Date: 20130117
Docket:
T-272-12
Citation:
2013 FC 44
Toronto, Ontario, January 17, 2013
PRESENT: Kevin R. Aalto, Esquire, Prothonotary
BETWEEN:
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ANTON OLEINIK
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Applicant
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and
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THE PRIVACY COMMISSIONER OF CANADA
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
This
motion to strike engages the processes and procedures mandated in the Privacy
Act RSC 1985 c P-21 (the Act). The case arises from a number of
complaints made to the Office of the Privacy Commissioner (OPC) and related legal
proceedings commenced by the Applicant, Dr. Oleinik.
[2]
The
Notice of Application that OPC seeks to strike seeks two substantive forms of
relief, as follows:
1. An
order in the nature of certiorari quashing the Report of findings issued by the
OPC with regard to Dr. Anton Oleinik’s complaint against the Social Sciences
and Humanities Council of Canada under the Privacy Act (OPC’s File No.
7100-011365);
2. An
order directing the OPC to give Dr. Anton Oleinik access to his personal information
in the OPC’s custody and control as per his two access to personal information
requests (OPC’s File Nos. P-2011-00012/AR and P-2011-00011/TL).
[3]
The
Privacy Commissioner (OPC) argues that this Application is bereft of any chance
of success and should be struck. To that end, OPC relies upon the standard
adopted in the well known case of David Bull Laboratories (Canada) Inc v Pharmacia
Inc, [1995] 1 FC 588 (CA), wherein the Federal Court of Appeal noted as
follows:
15 For these reasons we are
satisfied that the Trial Judge properly declined to make an order striking out,
under Rule 419 or by means of the “gap” rule, as if this were an action. This
is not to say that there is no jurisdiction in this Court either inherent or
through Rule 5 by analogy to other rules, to dismiss in summary manner a notice
of motion which is so clearly improper as to be bereft of any
possibility of success (See e.g. Cyanamid Agricultural de Puerto Rico,
Inc. v. Commissioner of Patents et al. (1983),
74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace
Society v. Canada, 1993 CanLII 2977 (FC), [1994] 1 F.C. 102 (T.D.), at pp. 120-121). Such cases must be
very exceptional and cannot include cases such as the present where there is
simply a debatable issue as to the adequacy of the allegations in the notice of
motion.
[emphasis added]
[4]
For
the reasons that follow, I agree that this Application is “bereft of any
possibility of success” and must be struck.
Quashing OPC’s
Report on the Applicant’s complaint against SSHRC
[5]
As
excerpted above, in the first of two heads of relief, Dr. Oleinik seeks by this
Application to quash the OPC’s non-binding report of findings regarding his
complaint against the Social Sciences and Humanities Council of Canada
{SSHRC). This relief cannot be granted; moreover, it is a patent abuse of
process given the history of Mr. Oleinik’s proceedings on this issue in this
Court.
[6]
Only
a brief background is necessary. Dr. Oleinik is an Associate Professor at Memorial Univers ity in Newfoundland and Labrador. Apparently, in 2007 he applied
unsuccessfully for a research grant from the SSHRC. He then sought access to
his personal information maintained by SSHRC. Subsequently, because he was not
satisfied with the responses received from SSHRC, he initiated complaints to
the OPC. As a result of the complaint to the OPC, a non-binding report of
findings was issued by the OPC. The ultimate conclusion of that non-binding
report was that the complaint was not “well-founded.” That non-binding report
of the OPC was the subject of judicial review proceedings in this Court and by
Order made November 7, 2011, by the Honourable Mr. Justice Rennie the
application was dismissed: Oleinik v Canada (Privacy Commissioner), 2011
FC 1266 [Oleinik 1]. A subsequent appeal to the Federal Court of Appeal
was dismissed from the bench on September 4, 2012: Oleinik v Canada (Privacy Commissioner), 2012 FCA 229.
[7]
In
Oleinik 1, Justice Rennie dismissed Dr. Oleinik’s application for
judicial review with the following strong words:
7. As Justice Tremblay-Lamer stated in Keïta
c. Canada (Ministre de la Citoyenneté & de l'Immigration), 2004 FC 626
(F.C.) at para 20: "The validity of the [Privacy] Commissioner's
recommendations is not subject to the Court's powers of review. The precedents
on this point are clear and ample." In reaching this conclusion Justice
Tremblay-Lamer relied on the decision of the Federal Court of Appeal, in Canada
(Attorney General) v. Bellemare, [2000] F.C.J. No. 2077 (Fed. C.A.) at paras 11-13, which involved allegations lodged against the Information
Commissioner similar to those lodged by the applicant herein against the
Privacy Commissioner. Noël J.A. held:
Section 41 does not provide for a recourse against
the Information Commissioner (Wells v. Canada (Minister of Transport),
T-1729-92, April 19, 1993 [(1993), 48 C.P.R. (3d) 312 (Fed. T.D.)].
...
In short, the Court has no jurisdiction, pursuant to
section 41, to conduct a judicial review of the Information Commissioner's
findings and recommendations. It was therefore not open to the motions Judge to
allow the application for judicial review to continue.
8. The applicant's proper recourse was to
bring an application pursuant to section 41 of the Privacy Act, naming
the SSHRC as the respondent. At a minimum, this application should be supported
by some objective evidence to support the inference that personal information
was being withheld. In this case, despite being advised clearly by the OPC in
its letter of March 30, 2010 that his right of recourse lay in section 41 and
the de novo review of the SHRCC response, and after subsequently being
advised to the same effect by counsel for the OPC, the applicant persisted in pursuit
of recourse under section 18.1 of the Federal Courts Act challenging the
OPC recommendations. In consequence, the applicant runs squarely up against the
jurisprudence of the Court of Appeal and of this Court.
9. The applicant cannot seek judicial review
of the OPC's non-binding report to, in essence, challenge the SSHRC. He must
address the decision making body itself, not collaterally or indirectly through
the OPC. This is the procedure contemplated by Parliament.
[emphasis added]
[8]
Despite
this caution, Dr. Oleinik persists in his challenge in this Court against the
OPC’s non-binding report. This part of the Application is an abuse of process,
will never succeed, and must be struck. It will also have an impact on the
cost consequences of this motion.
Mandating the
OPC to Disclose
[9]
OPC
argues that the second head of relief sought in this Application also cannot be
granted because of the jurisprudence in administrative law which requires that
an applicant pursue all available administrative remedies before seeking
judicial review. OPC relies upon the articulation of this principle in Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 [CB
Powell], in which the Federal Court of Appeal noted at paragraph 31:
[31] Administrative
law judgments and textbooks describe this rule in many ways: the doctrine of
exhaustion, the doctrine of adequate alternative remedies, the doctrine against
fragmentation or bifurcation of administrative proceedings, the rule against
interlocutory judicial reviews and the objection against premature judicial
reviews. All of these express the same concept: absent exceptional
circumstances, parties cannot proceed to the court system until the
administrative process has run its course. This means that, absent exceptional
circumstances, those who are dissatisfied with some matter arising in the
ongoing administrative process must pursue all effective remedies that are
available within that process; only when the administrative process has
finished or when the administrative process affords no effective remedy can
they proceed to court. Put another way, absent exceptional circumstances,
courts should not interfere with ongoing administrative processes until after
they are completed, or until the available, effective remedies are exhausted.
[10]
Based
on the record before me, I agree that Dr. Oleinik has not pursued the
administrative remedies provided by the Act and for that reason the
remainder of this Application would not succeed and must also be struck.
[11]
Some
further background is necessary to understand how Dr. Oleinik has not exhausted
the administrative remedies available to him. While the earlier proceedings
before this Court were ongoing, Dr. Oleinik made an Access to Information
Request under the Act for all documents in the custody and control of
the OPC containing his name, including information stored on the OPC’s backup
email server. That request was received by OPC on December 2, 2011 (the
December 2011 Complaint).
[12]
A
second Access to Information Request was made by Dr. Oleinik for all documents
created by the OPC in the course of the investigation into his complaint
against SSHRC (the January 2012 Complaint).
[13]
In
response to the December 2011 Complaint, the OPC disclosed a number of
documents to Dr. Oleinik but withheld certain information pursuant to sections
22.1, 26 and 27 of the Act. In addition, certain information was
withheld pursuant to sections 3 and 12(1) of the Act as not being the
“personal information” of Dr. Oleinik. OPC also indicated that it did not
conduct a search of its backup email servers as it did not consider this
information “reasonably retrievable” within the meaning of section 12(1)(b) of
the Act.
[14]
In
order to give context to this response by the OPC it is useful to set out certain
of those specific provisions of the Act:
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Right
of access
12.
(1) Subject to this Act, every individual who is a Canadian citizen or a
permanent resident within the meaning of subsection 2(1) of the Immigration
and Refugee Protection Act has a right to and shall, on request, be given
access to
(a)
any personal information about the individual contained in a personal
information bank; and
(b)
any other personal information about the individual under the control of a
government institution with respect to which the individual is able to
provide sufficiently specific information on the location of the information
as to render it reasonably retrievable by the government institution.
[…]
Information
obtained by Privacy Commissioner
22.1
(1) The Privacy Commissioner shall refuse to disclose any personal
information requested under this Act that was obtained or created by the
Commissioner or on the Commissioner’s behalf in the course of an
investigation conducted by, or under the authority of, the Commissioner.
Exception
(2)
However, the Commissioner shall not refuse under subsection (1) to disclose
any personal information that was created by the Commissioner or on the
Commissioner’s behalf in the course of an investigation conducted by, or
under the authority of, the Commissioner once the investigation and all
related proceedings, if any, are finally concluded.
[…]
Information
about another individual
26.
The head of a government institution may refuse to disclose any personal
information requested under subsection 12(1) about an individual other than
the individual who made the request, and shall refuse to disclose such
information where the disclosure is prohibited under section 8.
Solicitor-client
privilege
27.
The head of a government institution may refuse to disclose any personal
information requested under subsection 12(1) that is subject to
solicitor-client privilege.
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Droit
d’accès
12.
(1) Sous réserve des autres dispositions de la présente loi, tout citoyen
canadien et tout résident permanent au sens du paragraphe 2(1) de la Loi sur
l’immigration et la protection des réfugiés ont le droit de se faire
communiquer sur demande :
a) les renseignements personnels le concernant et
versés dans un fichier de renseignements personnels;
b) les autres renseignements personnels le
concernant et relevant d’une institution fédérale, dans la mesure où il peut
fournir sur leur localisation des indications suffisamment précises pour que
l’institution fédérale puisse les retrouver sans problèmes sérieux.
[…]
Renseignements
obtenus par le Commissaire à la protection de la vie privée
22.1
(1) Le Commissaire à la protection de la vie privée est tenu de refuser de
communiquer les renseignements personnels demandés en vertu de la présente
loi qui ont été créés ou obtenus par lui ou pour son compte dans le cadre de
toute enquête faite par lui ou sous son autorité.
Exception
(2)
Toutefois, il ne peut s’autoriser du paragraphe (1) pour refuser de
communiquer les renseignements personnels créés par lui ou pour son compte
dans le cadre de toute enquête faite par lui ou sous son autorité une fois
que l’enquête et toute instance afférente sont terminées.
[…]
Renseignements
concernant un autre individu
26.
Le responsable d’une institution fédérale peut refuser la communication des
renseignements personnels demandés en vertu du paragraphe 12(1) qui portent
sur un autre individu que celui qui fait la demande et il est tenu de refuser
cette communication dans les cas où elle est interdite en vertu de l’article
8.
Secret
professionnel des avocats
27.
Le responsable d’une institution fédérale peut refuser la communication des
renseignements personnels demandés en vertu du paragraphe 12(1) qui sont
protégés par le secret professionnel qui lie un avocat à son client.
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[15]
In
response to the January 2012 Complaint, the OPC replied on January 6, 2012,
noting that it could not disclose any of the information requested by virtue of
the provisions of section 22.1 of the Act. That provision provides that
the OPC cannot produce the information created by the OPC in the course of its
investigation until the investigation and “all related proceedings, if any, are
finally concluded.” It was one of the OPC’s positions that as the time period
for bringing an Application to review the complaint against SSHRC had not yet
expired, the information requested could not be released. Pursuant to the
provisions of the Act they took the position that they were justified in
withholding the information and maintaining the position and that it was a
matter to be determined first by another process involving the “Privacy
Commissioner Ad Hoc”. The responses from OPC to Dr. Oleinik’s December
2011 and the January 2012 Complaints noted that Dr. Oleinik was entitled to
file a complaint concerning the processing of his requests with the “Privacy
Commissioner Ad Hoc” and provided contact information for doing
so.
[16]
It
is useful at this juncture to describe the role of the Privacy Commissioner Ad
Hoc. Pursuant to section 59 of the Act the duties and
responsibilities of the Privacy Commissioner can be delegated to a third party
to allow for, in the words of counsel for OPC, “independent and
impartial investigations into complaints against the Commissioner under the Act.”
Apparently, the current Privacy Commissioner Ad Hoc is Mr. John H. Simms
who has been delegated a majority of the Commissioner’s powers, duties and
functions as set out in section 29 to 35 and section 42 of the Act in
order to carryout this review function. Section 59 reads as follows:
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Delegation
by Privacy Commissioner
59.
(1) Subject to subsection (2), the Privacy Commissioner may authorize any
person to exercise or perform, subject to such restrictions or limitations as
the Commissioner may specify, any of the powers, duties or functions of the
Commissioner under this Act except
(a)
in any case other than a delegation to an Assistant Privacy Commissioner, the
power to delegate under this section; and
(b)
in any case, the powers, duties or functions set out in sections 38 and 39.
Delegations
of investigations relating to international affairs and defence
(2)
The Privacy Commissioner may not, nor may an Assistant Privacy Commissioner,
delegate
(a)
the investigation of any complaint resulting from a refusal by the head of a
government institution to disclose personal information by reason of
paragraph 19(1)(a) or (b) or section 21, or
(b)
the investigation under section 36 of files contained in a personal
information bank designated under section 18 as an exempt bank on the basis
of personal information described in section 21 except to one of a maximum of
four officers or employees of the Commissioner specifically designated by the
Commissioner for the purpose of conducting those investigations.
Delegation
by Assistant Privacy Commissioner
(3) An
Assistant Privacy Commissioner may authorize any person to exercise or
perform, subject to such restrictions or limitations as the Assistant Privacy
Commissioner may specify, any of the powers, duties or functions of the
Privacy Commissioner under this Act that the Assistant Privacy Commissioner
is authorized by the Privacy Commissioner to exercise or perform.
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Pouvoir
de délégation
59.
(1) Sous réserve du paragraphe (2), le Commissaire à la protection de la vie
privée peut, dans les limites qu’il fixe, déléguer les pouvoirs et fonctions
que lui confèrent la présente loi ou une autre loi fédérale, sauf :
a) le pouvoir même de délégation, qui ne peut être délégué qu’à
un commissaire adjoint;
b) les pouvoirs et fonctions énoncés aux articles
38 et 39, qui ne peuvent être délégués à quiconque.
Affaires
internationales et défense
(2)
Le Commissaire à la protection de la vie privée ou un commissaire adjoint ne
peuvent déléguer qu’à un de leurs collaborateurs choisis parmi quatre des
cadres ou employés du commissariat et que le Commissaire désigne spécialement
à cette fin la tenue des enquêtes suivantes :
a) les enquêtes portant sur les cas où le refus de
communication de renseignements personnels est lié aux alinéas 19(1)a) ou b)
ou à l’article 21;
b) les enquêtes prévues à l’article 36 et portant
sur les dossiers versés dans les fichiers inconsultables classés comme tels
en vertu de l’article 18 et contenant des renseignements personnels visés à
l’article 21.
Pouvoir
de subdélégation de l’adjoint
(3)
Un commissaire adjoint à la protection de la vie privée peut, dans les
limites qu’il fixe, subdéléguer les pouvoirs et fonctions que lui délègue le
Commissaire en vertu de la présente loi ou d’une autre loi fédérale.
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[17]
The
delegation document is set out in the motion record. The purpose of
establishing a Privacy Commissioner Ad Hoc is intended to provide a
mechanism for the independent and impartial investigations into complaints
which may be made against the Commissioner.
[18]
Pursuant
to paragraph 29(1)(b) of the Act and the above-mentioned delegation of
responsibilities, the Privacy Commissioner Ad Hoc “shall receive and
investigate complaints . . . from individuals who have been refused access to
personal information requested under subsection 12(1).” Because the OPC is
itself listed as a “government institution” to which the provisions of the Act
apply, the Privacy Commissioner Ad Hoc’s mandate includes receiving and
investigating complaints from individuals who have been refused access to
personal information held by the OPC.
[19]
Thus,
OPC takes the position that if Dr. Oleinik was dissatisfied with the results or
the responses to his December 2011 Complaint and January 2012 Complaint there
was an available administrative remedy of which he could avail himself in these
circumstances.
[20]
I
also note that the clear wording of section 41 of the Act similarly
provides that an “individual who has been refused access to personal
information requested under subsection 12(1) may, if a complaint has been
made to the Privacy Commissioner in respect of the refusal, apply to the
Court for a review of the matter” [emphasis added]. Rather than pursue a
complaint to be dealt with by the Privacy Commissioner Ad Hoc, Dr.
Oleinik has pursued this judicial review application, contrary to the Act
and administrative law jurisprudence.
[21]
Dr.
Oleinik raises a number of issues apart from opposing this motion generally.
In particular, Dr. Oleinik argues that this motion should not be considered
because it was filed outside the timeline for completing cross-examinations.
Dr. Oleinik had sent written interrogatories to the OPC. This motion was
brought after the interrogatories were sent.
[22]
The
simple answer to this argument is that under Rule 221 (1) the Court may “at any
time” order that a pleading be struck. However, OPC argues that apart from
this provision in the Rules the OPC has tried to avoid unnecessary expense by
responding to the interrogatories. Further, OPC argues that it was not
appropriate to bring the motion earlier because the appeal from Dr. Oleinik’s
appeal upholding Justice Rennie’s decision was only released on September 4,
2012. Issues raised in that proceeding overlap with issues in this proceeding
so finality in that proceeding was required before moving to strike this
proceeding. There is also some issue raised about the ability to serve Dr.
Oleinik because of travel commitments relating to his teaching duties.
However, it is not necessary to consider all of this as it is open to the Court
on the motion of a party at any time to strike.
[23]
On
the substance of the alternative remedy issue, Dr. Oleinik argues that he
should not have to first pursue the available recourse to the Privacy
Commissioner Ad Hoc because the Privacy Commissioner Ad Hoc is
just that – ad hoc. Dr. Oleinik refers to a report to Parliament of the
Privacy Commissioner which refers to the lacunae in the statute that there is
no independent oversight of production of documents under the Act which
may be in the possession of the Privacy Commissioner. Thus, the Privacy
Commissioner created the position of Privacy Commissioner Ad Hoc to fill
this void. Dr. Oleinik argues that such an ad hoc process cannot be
independent and therefore he has not pursued the administrative remedy of a
complaint to the Privacy Commissioner Ad Hoc.
[24]
While
Dr. Oleinik makes a valid point that the Privacy Commissioner Ad Hoc is
not a legislated position and may not be completely independent as the Privacy
Commissioner Ad Hoc is appointed by the Privacy Commissioner not
Parliament, nonetheless there is no evidence that the Privacy Commissioner Ad
Hoc has not acted independently and carried out the delegated duties
impartially. While CB Powell, above, at paragraph 33, recognizes that
an alternative remedy plagued with bias would be reason to allow an application
for judicial review despite that alternative remedy, it is trite to say that an
allegation of bias is serious and must be proven with convincing evidence. To
reiterate, there is simply no convincing evidence of bias, whether
institutional or personal on the record on this motion.
[25]
In
all of the circumstances, given the discussion above, the decision of Justice
Rennie and the Federal Court of Appeal, this application is bereft of any
chance of success and must be struck without leave to amend. The Respondent is
entitled to costs.
[26]
However,
this does not mean that Dr. Oleinik is without a remedy for any of the
complaints he makes, as discussed above, there is a right of complaint to the
Privacy Commissioner Ad Hoc for the OPC’s refusal to disclose the
information requested by him. From there, if necessary, there may be recourse
to this Court.
ORDER
THIS
COURT ORDERS that:
1.
This
application is struck out without leave to amend.
2.
The
Respondent is entitled to costs fixed and payable forthwith in the amount of
$3000.
“Kevin R. Aalto”
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