Canada (Privacy Commissioner) v. Canada (Labour Relations Board), docket A-685-96

Date: 20000509

Docket: A-685-96

CORAM:      DESJARDINS J.A.

         ROTHSTEIN J.A.

         EVANS J.A.

IN THE MATTER OF an application pursuant to section 42 of the Privacy Act, R.S.C. 1985, c. P-21 (the "Act") for review to the Federal Court of Canada of the refusal by the Privacy Coordinator of Canada Labour Relations Board to disclose records requested by the Privacy Commissioner of Canada under the Act.

BETWEEN:

PRIVACY COMMISSIONER OF CANADA

     Appellant

     (Applicant)

     - and -

     CANADA LABOUR RELATIONS BOARD

     Respondent

     (Respondent)

     - and -

     THE PUBLIC SERVICE STAFF RELATIONS BOARD

     THE HUMAN RIGHTS TRIBUNAL

     THE CANADIAN INTERNATIONAL TRADE TRIBUNAL

     THE NATIONAL TRANSPORTATION AGENCY OF CANADA

     Intervenors

     Heard at Ottawa, Ontario, on Tuesday, May 9, 2000.

     Judgment delivered from the Bench at Ottawa, Ontario, on Tuesday, May 9, 2000.

REASONS FOR JUDGMENT

OF THE COURT DELIVERED BY:      DESJARDINS J.A.

Date: 20000509

Docket: A-685-96

CORAM:      DESJARDINS J.A.

         ROTHSTEIN J.A.

         EVANS J.A.

IN THE MATTER OF an application pursuant to section 42 of the Privacy Act, R.S.C. 1985, c. P-21 (the "Act") for review to the Federal Court of Canada of the refusal by the Privacy Coordinator of Canada Labour Relations Board to disclose records requested by the Privacy Commissioner of Canada under the Act.

BETWEEN:

PRIVACY COMMISSIONER OF CANADA

     Appellant

     (Applicant)

     - and -

     CANADA LABOUR RELATIONS BOARD

     Respondent

     (Respondent)

     - and -

     THE PUBLIC SERVICE STAFF RELATIONS BOARD

     THE HUMAN RIGHTS TRIBUNAL

     THE CANADIAN INTERNATIONAL TRADE TRIBUNAL

     THE NATIONAL TRANSPORTATION AGENCY OF CANADA

     Intervenors

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Ottawa, Ontario,

     on Tuesday, May 9, 2000)

DESJARDINS J.A.

[1]      This is an appeal from the review, under section 42 of the Privacy Act,¹ by the Trial Division² of the refusal by the Canada Labour Relations Board (the "Board") to disclose to the Privacy Commissioner of Canada (the "Commissioner") notes taken by members of the Board during a hearing of a complaint of a breach of a duty of fair representation under section 37 of the Canada Labour Code .³

[2]      The trial judge made a detailed analysis of the provisions of both the Privacy Act and the Access to Information Act⁴ together with a deep consideration of the long-established principle that adjudicative decision makers, whether judges or members of administrative tribunals, should be free to hear and decide the cases before them independently without any improper influence from others. By the same token, he considered the corollary principle that the decision-making processes of these decision makers should be similarly free from any intrusion. He was careful to indicate that both principles, the first termed "judicial independence" and the second termed "adjudicative privilege" when applied to courts of law,⁵ were imported into the sphere of administrative decision making through the common law duty of fairness. Since administrative tribunals are bound by the duty of fairness, then their members must, like judges, be shielded against any type of intrusion into their thought processes beyond what is revealed by their reasons.

[3]      The trial judge concluded that the request by the Commissioner was contrary to paragraph 22(1)(b) of the Privacy Act because the disclosure of the notes of the Board members "could reasonably be expected to be injurious to the enforcement of any law in Canada". Such request, he said, would interfere with the independence and intellectual freedom of quasi-judicial decision makers acting under the Canada Labour Code . It would reveal, he said, their personal decision-making processes and might cause them to alter the manner in which they arrive at decisions. The trial judge also concluded that the notes were not "personal information" and that they were not "under the control" of the Board, as found in paragraph 12(1)(b ) of the Privacy Act.

[4]      Many issues were canvassed before us. We choose, however, to decide this case on a threshold point which is the question of control of the information by a government institution.

[5]      While the notes taken by the Board members may or may not amount to "personal information", a matter we need not decide, it is obvious to us that these notes are not "under the control" of the Board as provided in paragraph 12(1)(b ) of the Privacy Act. These notes are being taken during the course of quasi-judicial proceedings, not by employees of the Board, but by Governor in Council"s appointees endowed with adjudicative functions which they must perform, not as agent of the Board, but independently of other members of the Board including the chairperson of the Board or a government institution. Board members are under no obligation to take notes although they may. Their notes are not part of the official records of the Board and are not contained in any other record keeping system over which the Board has control.

[6]      The trial judge made the following statement with which we agree:⁶

... It is clear that there is no requirement either in the Canada Labour Code, or in the CLRB policy or procedure touching upon the notes. The notes are viewed by their authors as their own. The CLRB members are free to take notes as and when they see fit, and indeed may simply choose not to do so. The notes are intended for the eyes of the author only. No other person is allowed to see read or use the notes, and there is a clear expectation on the part of the author that no other person will see the notes. The members maintain responsibility for the care and safe keeping of the notes and can destroy them at any time. Finally, the notes are not part of the official records of the CLRB and are not contained in any other record keeping system over which the CLRB has administrative control.

In my view, it is apparent from the foregoing that however broadly one construes the word control, the notes in issue were not "under the control" of the CLRB within any of the meanings that can be attributed to that term. Not only are the notes outside the control or custody of the CLRB but they are also considered by the CLRB to fall outside the ambit of its functions.

[7]      Paragraphs 15(a) and (q) of the Canada Labour Code empower the Board to make regulations with respect to:

a) the establishment of rules of procedure for its hearing;

...

q) such other matters and things as may be incidental or conducive to the proper performance of the duties of the Board under this part.

[8]      We agree with the trial judge"s conclusion that, by means of this power, the Board could not exercise such control over these notes as to bring them "under the control of a government institution" within the meaning of paragraph 12(1)(b ) of the Privacy Act.

[9]      A regulation that, for instance, requires members to take notes, prescribes the form of such notes or requires that they be deposited with the Board, would be invalid as a breach of the aspect of the duty of fairness respecting the independence of adjudicative decision makers. The principle of judicial independence and its corollary, the principle of adjudicative privilege, as applied to administrative tribunals, lie at the heart of the Board"s lack of control over the notes as a government institution.

[10]      Counsel for the appellant suggested that, because the notes were under the control of members who made them, and because decisions of panels are decisions of the Board, the notes are therefore under the control of the Board, the government institution in question. In our view, this does not follow because it ignores the independence of the members in their adjudicative capacity.

[11]      Control is a threshold issue. Having found that the notes are not under the control of a government institution, we are of the opinion that this appeal must be dismissed with costs in favour of the respondent in a sum of $ 15 000 inclusive of disbursements.

     "Alice Desjardins"

     J.A.

__________________

     ¹R.S.C. 1985, c. P-21.

     ²Canada (Privacy Commissioner) v. Canada (Labour Relations Board) (1996), 118 F.T.R. 1.

     ³R.S.C. 1985, c. L-2.

     ⁴R.S.C. 1985, c. A-1.

     ⁵The trial judge noted at (1996), 118 F.T.R. 1, footnote 14, at 16 and 57, that this principle, as applied to the judiciary, has been termed judicial independence and its corollary is referred to as the adjudicative privilege; see MacKeigan J.A. et al. v. Commission (Marshall Inquiry) (1989), 61 D.L.R. (4^th) 688 at 703-704. See also para. 63-67 of the trial judge"s reasons for judgment in (1996), 118 F.T.R. 1 at 37-40.

     ⁶(1996), 118 F.T.R. 1 at 52, para. 105 .