Sauvé v. Canada (Attorney General)

Sauvé v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2016-04-11
Neutral citation
2016 FC 401
File numbers
T-2584-14
Decision Content
Date: 20160411
Docket: T-2584-14
Citation: 2016 FC 401
Ottawa, Ontario, April 11, 2016
PRESENT: The Honourable Madam Justice Elliott
BETWEEN:
BRIAN SAUVE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview [1] This is an application for judicial review of an investigation report and finding by the Privacy Commissioner of Canada (the Commissioner) determining the Applicant’s complaint (the Complaint) under subparagraph 29(1)(h)(ii) of the Privacy Act, RSC 1985, c P-21, (the Act) was not well-founded. The finding was delivered by a letter dated November 18, 2014 to the Applicant.
[2] It is common agreement between the parties that the Commissioner’s investigation report is a non-binding finding and there is no recourse directly available to this Court under any section of the Act for judicial review of the report.
[3] The Applicant has brought an application pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7, (the FC Act) asking this Court to provide the relief sought in the application.
[4] For the reasons that follow, this application is dismissed.
II. Background [5] The Applicant is a member of the RCMP. At the time he filed the complaint he held the position of Staff Relations Representative (SRR) for “E” Division and he was Chair of one of the seven National SRR Health Committees.
[6] Under section 8 of the Act, personal information under the control of a government institution shall not be disclosed without the consent of the individual to whom it relates except if it falls within one or more of the various subsections. In this case it is paragraph 8(2)(d) that is applicable. It permits disclosure “to the Attorney General of Canada for use in legal proceedings involving the Crown in right of Canada or the Government of Canada.”
[7] In 2011, a protocol was developed by the RCMP and the Department of Justice (DOJ) establishing a process by which personal medical information of RCMP members could be disclosed to DOJ under the provisions of subparagraph 8(2)(d) of the Act for use in legal proceedings involving the Crown or the Government of Canada (the Protocol). The Protocol is entitled “Protocol Concerning the Disclosure of Medical Information for the Purposes of Litigation involving the Attorney General”.
[8] Under the Protocol, all requests from DOJ for the disclosure of medical information will be made in writing and addressed to the Director General of the Occupational Health and Safety Branch of the RCMP (DGOHSB). The request is to indicate there is a claim against the Crown and the information is sought pursuant to subparagraph 8(2)(d) of the Act. The DGOHSB will make a written request to the appropriate Human Resource Officer of the RCMP who will in turn request a medical professional engaged by the RCMP to provide the information in a sealed envelope. The sealed envelope will then travel back up the chain ending at DOJ.
[9] Prior to April 1, 2013, the RCMP was self-insured for all health costs of regular members. They acquired much more personal medical information about members and their families than would otherwise be the case. They maintain two sorts of medical files, one called “comprehensive” and the other called “occupational”. In 2004, there was apparently a movement to retain only “occupational” medical files but, as of the date of hearing, there was no RCMP-wide directive and some divisions still hold “comprehensive” medical files. The evidence is that much of the information in the files has nothing to do with service in the RCMP. They also contain medical information about members’ families who received health benefits through the RCMP.
[10] No personal information about the Applicant is at issue in this case nor is the Applicant involved in litigation with the Crown in right of Canada or the Government of Canada. The Applicant has brought this application because he is concerned about the privacy implications of the Protocol. He first learned of the Protocol through his involvement with the National SRR Health Committee.
[11] The Commissioner investigated the complaint, receiving written representations from the complainant and from the RCMP. He found that the wording of paragraph 8(2)(d) “allows for very broad interpretation”. In that respect, he decided that as long as the two criteria found in the Act – disclosure to the Attorney General, for use in legal proceedings involving either the Crown in right of Canada or the Government of Canada – are met, the government institution (the RCMP in this case) is authorized to disclose the personal information without consent.
[12] The Commissioner made one finding and one recommendation. He found the Protocol is consistent with the wording of paragraph 8(2)(d) of the Act and the complaint is considered not well-founded. He then recommended that if the Protocol is revised it include a requirement for DOJ to return any personal information to the RCMP that it considers is not relevant to the proceedings.
[13] There is no evidence before the Court that the Protocol has yet been used. The Commissioner indicates he was advised that a revised version of the Protocol has been drafted but not implemented as of the date of his report.
A. The Protocol [14] In 2011, the RCMP and the Department of Justice (DOJ) developed the Protocol to handle the disclosure of medical information from the RCMP to the DOJ. The full Protocol, which is quite short and is composed of a Foreword and the Protocol itself, is contained in Annex “A”. The Protocol section states:
All requests from the Department of Justice Canada (DOJ) for the disclosure of medical information will be made in writing and addressed to the Director General of the Occupational Health and Safety Branch of the RCMP;
The request will indicate that there is a claim against the Crown or the Government of Canada by an employee or former employee of the RCMP and indicate that it is being sought pursuant to paragraph 8 (2) (d) of the Privacy Act;
Once received, the Director General of the Occupational Health and Safety Branch of the RCMP will make a written request to the Human Resource Officer (HRO) in the region where the information is located.
The Human Resource Officer will in turn request that a medical professional engage [sic] by the RCMP provide a copy of this information to him/her in a sealed package;
The HRO will thereafter provide the sealed, copied material to the Director General Occupational Health and Safety Branch; and
The Director General Occupational Health and Safety Branch will provide that information to DOJ.
B. The Complaint [15] The Protocol came to the attention of the Applicant through his involvement with the National SSR Health Committee of the RCMP. In his affidavit sworn on February 10, 2015, the Applicant states the following reason for filing his complaint:
I was concerned about the privacy implications of this Protocol. Therefore, through counsel, I filed a complaint with the Privacy Commissioner under paragraph 29(1)(h) of the Privacy Act.
[16] The complaint was made under subparagraph 29(1)(h)(ii) of the Act, which deals with use or disclosure of personal information under the control of a government institution. The Applicant says the terms of the Protocol do not meet the requirements of paragraph 8(2)(d) of the Act. Briefly, the Applicant alleges the Protocol violates paragraph 8(2)(d) of the Act in five ways in that it:
i. improperly fetters discretion,
ii. contains no limits on the types of legal proceedings,
iii. does not require notice to the affected person,
iv. contains no safeguards to the personal information being disclosed, and
v. does not require DOJ to identify the purpose for the disclosure.
[17] The Complaint was filed on March 21, 2013. When the Complaint was filed, counsel for the Applicant attached a detailed five-page explanation outlining the nature of the medical information held by the RCMP and referred to a variety of jurisprudence in support of his position. He explained his reasons for believing that each of the five problems he identified with the Protocol were correct. He attached some directives or policies of the Treasury Board concerning inter-departmental disclosure of personal information. He acknowledged they were not binding on the Commissioner but may be relevant as an interpretive tool or as a statement of best practices.
(1) The Investigation [18] On June 13, 2013, the Senior Privacy Investigator wrote to the Applicant acknowledging the Complaint. He indicated there were four allegations that the Protocol does not meet the requirements of paragraph 8(2)(d). He invited the Applicant to make representations at any time prior to completion of the investigation and provide any additional information or comments he felt were relevant to the Complaint. The Investigator did not include in his summary of the complaint the Applicant’s third allegation that the Protocol is silent about measures to safeguard personal information. That omission has not been raised as an issue in this judicial review.
[19] Counsel for the Applicant wrote to the Investigator on June 18, 2013 to indicate there was no additional information to add at that time but that he would like to receive a copy of the RCMP’s written submissions in order that he could reply to them. In an email dated June 18, 2013 the Investigator indicated representations made by either party received during the investigation were confidential by virtue of section 33 of the Act and could not be shared.
[20] On April 14, 2014, the Investigator by email asked whether the Applicant had any specific examples of personal medical information being shared with DOJ that was not relevant to a legal proceeding and whether the Applicant thought DOJ or the RCMP are to determine relevance to the legal proceeding for which the information has been requested.
[21] On May 8, 2014, counsel for the Applicant indicated there might be an RCMP member whose personal information had been provided by the RCMP to DOJ as part of a legal matter but, ultimately, it was determined that the member was engaged in civil proceedings to deal with it. In response to a question from the Investigator the Applicant indicated he thought both DOJ and the RCMP should determine the relevance of any information requested. He felt DOJ should only request personal medical information if they considered it relevant to the legal proceeding and the RCMP should only release the medical information if they considered it relevant to the legal proceeding. He stated that independent exercise of discretion was required by subsection 8(2) of the Act because of the use of the words “may be disclosed”.
[22] The Applicant also submitted that DOJ should return any personal medical information that was disclosed by the RCMP but was not relevant to the legal proceeding. I note that submission was accepted by the Commissioner and is the sole recommendation made in the Report of Findings (Finding).
[23] The RCMP made submissions on September 19, 2013. They note that “responsibility for disclosure is clearly placed with the Director General, Occupational Health & Safety Branch”, the request must be in writing, and it must indicate there is a specific claim against the Crown by an employee or former employee of the RCMP. Any requests must also state the information is sought pursuant to paragraph 8(2)(d) of the Act.
[24] The RCMP notes the wording of the Act stipulates, without limitation or restriction, that information can be disclosed to the Attorney General of Canada for use in legal proceedings. They respond to each of the Applicant’s specific complaints essentially relying on the wording of the disclosure provision in the Act and the requirements in the Protocol that the request be in writing, that it identify certain matters, and be handled by certain people.
[25] There were no further submissions or representations other than the above and a few telephone calls, the contents of which are unknown.
[26] The Finding was released November 18, 2014.
(2) The Finding [27] The Commissioner’s Report of Findings outlined the Complaint and provided a summary of the investigation as well as the arguments made by the parties under each of the four areas considered. He then noted that it was necessary to consider sections 3 and 8 of the Act to make his determination and that the Protocol deals with the disclosure of personal medical information.
[28] I will outline briefly each of the four areas considered by the Commissioner and his reasons for finding that the Complaint was not well-founded.
(a) Improper Fettering of Discretion [29] The Commissioner reviewed the Applicant’s position that his reading of the Protocol leads him to believe disclosure will happen automatically and there is no ability of the RCMP to elect not to disclose, but that the provisions of the Act require the exercise of discretion. That exercise cannot be fettered in advance and must be considered with each individual request while reserving the right to refuse a request. He also noted the RCMP’s position that disclosure under the Protocol is consistent with the wording of the Act as it contains no limitations or restrictions but stipulates information can be disclosed to the Attorney General of Canada for use in legal proceedings.
[30] With respect to the Complaint, the Commissioner found paragraph 8(2)(d) of the Act allows for very broad interpretation and the government institution’s role is to ensure the objective criteria outlined in the paragraph are met before disclosing personal information without consent. The criteria are that disclosure be made to the Attorney General of Canada and it must be for the use in legal proceedings involving the Crown in right of Canada or the Government of Canada.
[31] The Commissioner found “[o]nce these two conditions are met, the government institution is authorized to disclose personal information without consent.” He went on to find use of the word “may” did not require the exercise of discretion on a case-by-case basis as it was simply empowering the RCMP to make disclosure it would not otherwise be authorized to make.
(b) No Limit on the Types of Legal Proceedings/Relevance to a Legal Proceeding [32] The Commissioner identified the Applicant’s concern that there was no limit on the type of legal proceeding for which medical information may be disclosed and that he raises an issue of relevance to the proceeding for which the information is sought. The Applicant notes there is no requirement in the Protocol that a detailed explanation be provided by DOJ of the relevance and necessity of the information being requested. Similarly there are no safeguards to ensure information is going to be used for defending the claims as opposed to prosecuting claims against RCMP members. The Applicant hypothesizes DOJ could request a member’s medical information for the purpose of a judicial review proceeding related to a grievance over a term or condition of their employment such as overtime pay or travel allowance.
[33] The Commissioner notes the RCMP position that the Protocol requires any request by DOJ cite the specific claim against the Crown or Government of Canada.
[34] In his Finding, the Commissioner notes nothing in the Protocol precludes the RCMP from questioning the relevance of the request and his position is that the relevance is best determined by DOJ who is subject to the requirements of the Act. The Commissioner also notes the Protocol clearly applies to claims against the Crown, not any initiated by the Crown.
(c) No Requirement for Notice to the Affected Party [35] The third aspect to the Complaint considered by the Commissioner was the Applicant’s argument that any disclosure of personal information should not be done without first notifying the affected parties. The Applicant cites Gordon v Canada, 2007 FC 253, to say a person must be informed when their personal information has been disclosed under paragraph 8(2)(d).
[36] In reply, the RCMP simply offered their opinion there is no such requirement in the wording of paragraph 8(2)(d) but, if there is, then by initiating a legal proceeding against the Crown the person who does so implicitly agrees to the gathering of information relating to their claim.
[37] The Commissioner’s analysis was that there is no general requirement under paragraph 8(2)(d) to provide notice and, in the absence of a requirement to seek consent, there is no requirement to notify an individual of an impending disclosure in any of the various exceptions enumerated in subsection 8(2). The Commissioner also noted the case referred to by the Applicant involved disclosure of personal taxpayer information under the Income Tax Act.
(d) No Requirement for DOJ to Identify the Purpose of the Disclosure [38] The Commissioner noted this aspect of the Complaint was implicitly tied to the Applicant’s position with respect to there being no limit on the types of legal proceedings for which disclosure might be sought. He then noted the RCMP position that the Protocol requires DOJ to cite the specific claim is against the Crown.
[39] Having related this part of the Complaint to the second allegation, the Commissioner simply found there was no specific evidence presented in the investigation that personal medical information of RCMP members has in fact been disclosed to DOJ that was not relevant to any particular legal proceeding for which it was sought.
[40] The ultimate conclusion by the Commissioner was that having reviewed the Protocol he found it to be consistent with the wording of paragraph 8(2)(d) of the Act therefore the Complaint was not well-founded. He did, however, make the recommendation that any personal information that had been received by DOJ but not considered relevant to the proceedings be returned to the RCMP if the Protocol was being revised.
III. Relief Sought [41] The Applicant alleges the Commissioner erred in law and/or came to an unreasonable conclusion in concluding that the Protocol meets the requirements of paragraph 8(2)(d) of the Act.
[42] As a result of this allegation the Applicant seeks a declaration that the Protocol violates paragraph 8(2)(d) of the Act. This is the same declaration he sought from the Commissioner.
[43] He also seeks:
i. an order setting aside the Commissioner’s finding,
ii. an order remitting the matter to the Commissioner for determination of the appropriate remedy; and,
iii. costs.
IV. Issues [44] The only issue identified by the Applicant is whether the Protocol violates the Act and, if it does then, what remedies are appropriate.
[45] The Respondent identifies three preliminary issues:
i. Does the Court have jurisdiction to determine this matter?
ii. Does the Applicant have standing to bring this application?
iii. What is the proper interpretive approach to the Act?
[46] If I determine I have jurisdiction to hear the matter and the Applicant has standing, the Respondent submits there are three additional issues:
i. What is the applicable standard of review?
ii. Was the Commissioner’s finding that the Protocol was consistent with the Act reasonable?
iii. What remedies are available to the Applicant?
[47] As this is a judicial review my focus is on whether the Commissioner’s Finding on the Complaint was reasonable. Within that analysis both the Protocol and the Act will necessarily be reviewed. The Protocol itself however is not the main focus of these proceedings, the Finding is the focus and the Protocol is a necessary ingredient in the analysis.
[48] Having considered the submissions as to the issues, I have determined that I will approach the analysis this way:
i. Is this application properly before the Court?
ii. If so, what is the standard of review?
iii. Can the Commissioner’s Finding withstand Judicial Review?
iv. If not, should the discretionary relief sought by the Applicant be granted?
V. Is the Application Properly Before the Court? [49] There is a very live issue between the parties as to whether the application is properly before the Court. They approach the issue from different perspectives. The areas to be canvassed in this respect include:
i. whether the Court has jurisdiction to consider the matter at all given the provisions of the Act and the FC Act; and, if so,
ii. whether the issue raised by the Applicant is justiciable; and, if so,
iii. whether the Applicant has standing to bring the application.
[50] With respect to the last two issues, they tend to overlap. In his book Boundaries of Judicial Review: The Law of Justiciability in Canada, 2nd Edition (Carswell, 2012), Dean Lorne Sossin explains the difference between them this way at page 10:
Justiciability is often confused with standing. Standing addresses the question of who is entitled to bring proceedings to a court, while justiciability relates to what such people may ask a court to decide.
A. Jurisdiction under the Legislation [51] The first question is whether I have jurisdiction to determine this application given the provisions of the Act and the FC Act.
[52] The grounds for the application are based on paragraphs 8(2)(a) and (d) and section 29 of the Act and paragraphs 18.1(4)(a) and (c) of the FC Act. The relevant portions of the Act and the FC Act are attached as Annex “B”. The most important extracts appear below:
Privacy Act
Disclosure of personal information
8 (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.
Where personal information may be disclosed
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
(d) to the Attorney General of Canada for use in legal proceedings involving the Crown in right of Canada or the Government of Canada;
Receipt and investigation of complaints
29(1) Subject to this Act, the Privacy Commissioner shall receive and investigate complaints
(h) in respect of any other matter relating to
(ii) the use or disclosure of personal information under the control of a government institution
Loi sur la protection des renseignements personnels
Communication des renseignements personnels
8 (1) Les renseignements personnels qui relèvent d’une institution fédérale ne peuvent être communiqués, à défaut du consentement de l’individu qu’ils concernent, que conformément au présent article.
Cas d’autorisation
(2) Sous réserve d’autres lois fédérales, la communication des renseignements personnels qui relèvent d’une institution fédérale est autorisée dans les cas suivants:
d) communication au procureur général du Canada pour usage dans des poursuites judiciaires intéressant la Couronne du chef du Canada ou le gouvernement fédéral;
Réception des plaintes et enquêtes
29 (1) Sous réserve des autres dispositions de la présente loi, le Commissaire à la protection de la vie privée reçoit les plaintes et fait enquête sur les plaintes :
h) portant sur toute autre question relative à :
(ii) l’usage ou la communication des renseignements personnels qui relèvent d’une institution fédérale
Federal Courts Act
Definitions
2 (1) In this Act,
federal board, commission or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown
Application for judicial review
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
Powers of Federal Court
(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
Grounds of review
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
Loi sur les Cours fédérales
Définitions
2 (1) Les définitions qui suivent s’appliquent à la présente loi.
office fédéral Conseil, bureau, commission ou autre organisme, ou personne ou groupe de personnes, ayant, exerçant ou censé exercer une compétence ou des pouvoirs prévus par une loi fédérale ou par une ordonnance prise en vertu d’une prérogative royale
Demande de contrôle judiciaire
18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande.
Pouvoirs de la Cour fédérale
(3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut :
a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;
b) déclarer nul ou illégal, ou annuler, ou infirmer et
renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral.
Motifs
(4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas :
a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer ;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
(1) The Privacy Act [53] There is common agreement between the parties that the Commissioner’s finding is non-binding. It does not fall under section 41 of the Act which provides for review in this Court when an individual is refused access to their own personal information. That is the only section of the Act providing an avenue to this Court for an individual. Sections 42 and 43 provide avenues for the Commissioner to come to this Court in specified circumstances.
[54] The Respondent says that is the end of the matter. There is no jurisdiction to provide the requested relief.
[55] The Applicant says he is not relying on the Act. He seeks his remedy under the FC Act precisely because there is no avenue for review available to him under the Act.
(2) The FC Act (a) Federal Board, Commission or Tribunal [56] Under paragraph 18(1)(a) of the FC Act, this Court has exclusive jurisdiction to grant declaratory relief against any federal board, commission or other tribunal, and to hear and determine any application for such relief on an application for judicial review under section 18.1 other than those matters assigned directly to the Federal Court of Appeal by section 28, none of which are present.
[57] A “federal board, commission or other tribunal” is defined in section 2 of the FC Act as “any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament”.
[58] There is no question that the Privacy Commissioner exercises powers under federal legislation and is therefore a federal board or commission pursuant to section 2 of the FC Act. There is thus a prima facie case for jurisdiction. The second part of the analysis is whether the Finding made by the Commissioner is a “decision or order” as specified in paragraphs 18.1(3)(b) and 18.1(4)(c) of the FC Act.
(b) Decision or Order [59] Under paragraph 18.1(3)(b) of the FC Act, the Court, on an application for judicial review, has certain powers including the power to “quash, set aside or set aside and refer back a decision, order, act or proceeding of a federal board, commission or other tribunal.” One of the questions is whether a non-binding finding can fall within the ambit of “a decision, order, act or proceeding”?
[60] I have no trouble in holding the Finding is “an act or proceeding” given the extensive jurisdiction of this Court and the Court of Appeal dealing with this question. For example, in Air Canada v Toronto Port Authority et al, 2011 FCA 347 at paragraph 24, [Air Canada] Mr. Justice Stratas summarized the various sections of the FC Act and its Rules addressing this topic as follows:
[24] Subsection 18.1(1) of the Federal Courts Act provides that an application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by “the matter in respect of which relief is sought.” A “matter” that can be subject of judicial review includes not only a “decision or order,” but any matter in respect of which a remedy may be available under section 18 of the Federal Courts Act: Krause v. Canada, 1999 CanLII 9338 (FCA), [1999] 2 F.C. 476 (C.A.). Subsection 18.1(3) sheds further light on this, referring to relief for an “act or thing,” a failure, refusal or delay to do an “act or thing,” a “decision,” an “order” and a “proceeding.” Finally, the rules that govern applications for judicial review apply to “applications for judicial review of administrative action,” not just applications for judicial review of “decisions or orders”: Rule 300 of the Federal Courts Rules.
[61] The Applicant says the Finding is justiciable because it is a “decision” within the meaning of paragraph 18.1(3)(b). However, that is not determinative of justiciability. It simply shows there is “an act or thing” in play. It does not address the quality or characteristics of the “act or thing”. It simply moves us to the next two stages to be considered: justiciability and standing.
B. Is there a Justiciable Issue before the Court? [62] As noted at paragraph 50 of these reasons, justiciability is concerned with what the court is being asked to decide. If the matter is not justiciable, there is no point in granting standing to an Applicant, as there is nothing to be determined by the Court.
[63] If the Finding is justiciable then the question turns to whether the Applicant is directly affected and thereby has standing. I pause to note the validity of subparagraph 8(2)(d) of the Act is not in issue in this application for judicial review.
[64] The focus of the parties in their arguments was on the non-binding nature of the Finding and whether the Applicant was directly affected by it as well as whether there is a serious issue to review. Without doubt these arguments overlap the areas of justiciability and standing. I will do my best to differentiate them but, in this case, I believe nothing in particular turns on how the arguments are categorized.
(1) Positions of the Parties [65] Justiciability deals with whether it is appropriate for the Court to decide a particular issue. This is done by looking at what is placed before the Court for adjudication. The Notice of Application, filed December 19, 2014, describes what I am asked to review. It is clearly framed as follows:
This is an application for judicial review of the decision of the Privacy Commissioner of Canada (“Privacy Commissioner”) concluding that a complaint filed by the Applicant was not “well-founded”, dated November 18, 2014 but received on November 21, 2014.
[66] Technically, the Protocol is not being reviewed by me other than within the context of whether the Finding that the Complaint was not well founded can stand.
[67] The Respondent says that as the Finding is a non-binding opinion there is no consequence at all so there is nothing to review. Relying on Air Canada the Respondent submits that to be amenable to judicial review the Finding must affect the rights of the Applicant or there must be legal consequences to him.
[68] The Respondent relies on, amongst others, the Court of Appeal decision in Democracy Watch v Conflict of Interest and Ethics Commissioner, 2009 FCA 15. In that case, a non-binding letter from the Conflict of Interest and Ethics Commissioner was held not to be reviewable under the legislation as it was not a decision or order. The Court also found at paragraph 10 that “[w]here administrative action does not affect an Applicant’s rights or carry legal consequences, it is not amenable to judicial review.”
[69] The Applicant agrees the Finding is non-binding but distinguishes the various cases relied upon by the Respondent based on the facts. The Applicant puts forward his own cases to show non-binding opinions are in fact reviewable.
[70] The Applicant asks me to read the decision of the Federal Court of Appeal in Morneault v Canada (Attorney General), [2001] 1 FCR 30 (FCA), [Morneault] as standing for the proposition that “if the decision has an impact on a person it is a reviewable decision”. He says privacy rights are important and he is impacted in that his personal privacy rights are at risk of being improperly disclosed because the Protocol does not sufficiently protect those rights.
[71] The Applicant also referred me to Moumdjian v Canada (Security Intelligence Review Committee, [1999] 4 FCR 624, [Moumdjian], which is a case dealing with deportation of a landed immigrant on the basis that there were reasonable grounds to believe he was likely to engage in acts of violence that would endanger the lives or safety of persons in Canada. In that instance the Court of Appeal found there was jurisdiction to hear the application although the SIRC “statement of circumstances summarizing allegations” upon which the deportation was founded was not a “decision or order”.
(2) Analysis [72] Mr. Justice Stratas in Air Canada summarizes the considerations in determining whether a matter is reviewable (justiciable) at paragraphs 28-29:
[28] The jurisprudence recognizes many situations where, by its nature or substance, an administrative body’s conduct does not trigger rights to bring a judicial review.
[29] One such situation is where the conduct attacked in an application for judicial review fails to affect legal rights, impose legal obligations, or cause prejudicial effects.
[73] This summary is consistent with the cases the Applicant relies upon. Morneault dealt with a commission of inquiry struck under the Inquiries Act to investigate and make findings with respect to the deployment of Canadian Forces to Somalia in 1992. After the commission issued their report the commanding officer applied to quash various findings on the grounds of lack of procedural fairness and absence of evidentiary support. In determining that the commission report was reviewable, the Court of Appeal relied upon paragraph 18.1(4)(b) of the FC Act dealing with procedural fairness and natural justice. They found that although the report was a non-binding opinion and was not strictly a decision or order, serious harm might be caused to the complainant’s reputation by findings that lacked support in the record (see paragraphs 41, 42, and 45).
[74] In Moumdjian, the Court of Appeal found jurisdiction to review the SIRC statement also on the basis that there was a serious issue. The Court held at paragraph 23 that:
[23] In conclusion, I am of the view that this Court possesses the requisite jurisdiction to hear the applicant’s application for judicial review of the SIRC decision. The jurisprudence reveals that the term “order or decision” has no fixed or precise meaning but, rather, depends upon the statutory context in which the advisory decision is made, having regard to the effect which such decision has on the rights and liberties of those seeking judicial review. (my emphasis)
[75] In both Morneault and Moumdjian, the underlying reason for assuming jurisdiction despite the presence of a non-binding report or statement was the level of serious harm occasioned by the matter being reviewed. In Morneault, the court was concerned with the serious harm to Lt. Col. Morneault’s reputation, resulting from the contents of the report of the inquiry particularly if there was a lack of support in the record for certain findings. In Moumdjian, the serious harm was deportation from Canada because of the SIRC statement of allegations.
[76] There are three distinguishing characteristics in Morneault and Moumdjian that are not present in this case. Firstly, both Lt. Col. Morneault and Mr. Moumdjian were personally the subject of a specific finding made about them. Secondly, those findings were made by administrative bodies that acted more like a court in that they heard evidence over an extended period of time and the complainant’s were active participants in the proceedings leading to the determinations they were challenging. Thirdly, there was a magnitude of harm, serious harm, flowing directly to the complainants as a result of the findings being challenged. There was cause and effect. In one case personal reputation was at stake and in the other case the ability to remain living in Canada without being deported was at risk. In Morneault, there was also an issue of procedural fairness.
[77] There is no allegation of procedural unfairness with respect to the Finding.
[78] The investigation leading to the Finding involves only written submissions from the parties. There was no hearing, no witnesses, just the written submissions. Under the Act, the Applicant was not even permitted to receive a copy of the submissions made by the RCMP. The trappings of a Court proceeding are absent in this case.
[79] The Commissioner is not an adjudicator despite being “like an Ombudsman”, notwithstanding the “quasi-constitutional” origins of the Act as determined by the Supreme Court of Canada in Canada (Privacy Commissioner) v Blood Tribe Department of Health, 2008 SCC 44. The function and role of the Commissioner is outlined at paragraph 20:
The Privacy Commissioner is an officer of Parliament who carries out “impartial, independent and non-partisan investigations”: H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441, 2006 SCC 13 (CanLII), at para. 33. She is an administrative investigator not an adjudicator.
(internal citation omitted) (my emphasis)
[80] In terms of serious harm, the Applicant submits, I agree, and the Act and jurisprudence confirms that privacy rights are very important. Matters dealing with privacy rights are therefore also very important. But consideration of the importance alone is not enough – there needs to be some sort of harm occasioned to the Applicant by the Finding in order to be justiciable. The Applicant’s personal privacy rights have not been affected by the Finding. He himself notes he has “concerns” about the Protocol but he does not allege any magnitude of harm has occurred, to him or to anyone, as a result of either the Finding or the Protocol. The Finding simply reviews the Protocol and determines it does not violate the Act. The Applicant personally has not been caused any prejudicial effect by the Finding. It is also true that no one has suffered prejudicial effects as a result of the Finding.
[81] It does not escape me that there is a “chicken and egg” problem in that the Applicant’s complaint is about the Protocol. The Protocol is not being judicially reviewed, but it does form the basis of the issues underlying this application for judicial review. If however the Finding cannot stand, the Protocol could apply to the Applicant if he engages in legal proceedings against the government. That is the reason for his Complaint to