Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association

Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association
Collection
Supreme Court Judgments
Date
2011-12-14
Neutral citation
2011 SCC 61
Report
[2011] 3 SCR 654
Case number
33620
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Alberta
Subjects
Administrative law
Notes
SCC Case Information: 33620
Decision Content
SUPREME COURT OF CANADA
Citation: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654
Date: 20111214
Docket: 33620
Between:
Information and Privacy Commissioner
Appellant
and
Alberta Teachers’ Association
Respondent
- and -
Attorney General of British Columbia,
Information and Privacy Commissioner of British Columbia and
B.C. Freedom of Information and Privacy Association
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 77)
Concurring Reasons:
(paras. 78 to 89)
Concurring Reasons:
(paras. 90 to 104)
Rothstein J. (McLachlin C.J. and LeBel, Fish, Abella and Charron JJ. concurring)
Binnie J. (Deschamps J. concurring)
Cromwell J.
Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654
Information and Privacy Commissioner Appellant
v.
Alberta Teachers’ Association Respondent
and
Attorney General of British Columbia, Information and
Privacy Commissioner of British Columbia and B.C.
Freedom of Information and Privacy Association Interveners
Indexed as: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association
2011 SCC 61
File No.: 33620.
2011: February 16; 2011: December 14.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for alberta
Administrative law — Judicial review — Implied decision — Decision of adjudicator quashed on judicial review on basis of the Information and Privacy Commissioner’s failure to comply with statutory time limits — Issue of time limits not raised with the Commissioner or adjudicator — Adjudicator consequently not specifically addressing issue and not issuing reasons in this regard — Whether a matter that was not raised at tribunal may be judicially reviewed — Whether reasons given by tribunal in other decisions may assist in determination of reasonableness of implied decision — Personal Information Protection Act, S.A. 2003, c. P‑6.5, s. 50(5).
Administrative law — Standard of review — Whether a tribunal’s decision relating to the interpretation of its home statute or statutes closely connected to its functions is reviewable on standard of correctness or reasonableness — Whether category of true questions of jurisdiction or vires should be maintained when tribunal is interpreting its home statute or statutes closely connected to its functions.
The Information and Privacy Commissioner received complaints that the Alberta Teachers’ Association (“ATA”) disclosed private information in contravention of the Alberta Personal Information Protection Act (“PIPA”). At the time, s. 50(5) of PIPA provided that an inquiry must be completed within 90 days of the complaint being received unless the Commissioner notified the parties that he was extending the time period and he provided an anticipated date for completing the inquiry. The Commissioner took 22 months from the initial complaint before extending the estimated date on which the inquiry would be concluded. Seven months later, an adjudicator delegated by the Commissioner issued an order, finding that the ATA had contravened the Act. The ATA applied for judicial review of the adjudicator’s order. In argument, it claimed for the first time that the Commissioner had lost jurisdiction due to his failure to extend the period for completion of the inquiry within 90 days of the complaint being received. The chambers judge quashed the adjudicator’s decision on that basis. A majority of the Court of Appeal upheld the chambers judge’s decision.
Held: The appeal should be allowed.
Per McLachlin C.J. and LeBel, Fish, Abella, Charron and Rothstein JJ.: Although the timelines issue was not raised before the Commissioner or the adjudicator, the adjudicator implicitly decided that providing an extension after 90 days did not automatically terminate the inquiry. The adjudicator’s decision was subject to judicial review on a reasonableness standard and her decision was reasonable. The adjudicator’s order should be reinstated and the matter should be remitted to the chambers judge to consider issues not dealt with and resolved in the judicial review.
A court has discretion not to undertake judicial review of an issue and generally will not review an issue that could have been, but was not, raised before the tribunal. However, in this case, the rationales for the general rule have limited application. The Commissioner has consistently expressed his views in other cases, so we have the benefit of his expertise. No evidence was required to consider the timelines issue and no prejudice was alleged.
In the present appeal, the letter notifying the parties of the extension was sent after the expiration of 90 days. An inquiry was conducted and the adjudicator ultimately rendered an order against the ATA. The issue raised by the ATA on judicial review could only be decided in one of two ways — either the consequence of an extension was that the inquiry was terminated or not. Both the Commissioner and the adjudicator implicitly decided that providing an extension after 90 days did not result in the inquiry being automatically terminated.
In this case, a reasonableness standard applied on judicial review. The Commissioner was interpreting his own statute and the question was within his specialized expertise. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, unless the question falls into a category of question to which the correctness standard continues to apply. The timelines question does not fall into such a category: it is not a constitutional question, a question regarding the jurisdictional lines between competing specialized tribunals, a question of central importance to the legal system as a whole, nor a true question of jurisdiction or vires. Experience has shown that the category of true questions of jurisdiction is narrow and it may be that the time has come to reconsider whether this category exists and is necessary to identify the appropriate standard of review. Uncertainty has plagued standard of review analysis for many years. The “true questions of jurisdiction” category has caused confusion to counsel and judges alike and without a clear definition or content to the category, courts will continue to be in doubt on this question. For now, it is sufficient to say that, unless the situation is exceptional, the interpretation by a tribunal of its home statute or statutes closely connected to its function should be presumed to be a question of statutory interpretation subject to deference on judicial review. As long as the “true question of jurisdiction” category remains, a party seeking to invoke it should be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the standard of reasonableness.
The deference due to a tribunal does not disappear because its decision was implicit. Parties cannot gut the deference owed to a tribunal by failing to raise the issue before the tribunal and thereby mislead the tribunal on the necessity of providing reasons. When the decision under review concerns an issue that was not raised before the decision maker, the reviewing court can consider reasons which could have been offered in support of the decision. When a reasonable basis for an implied decision is apparent, a reviewing court should uphold the decision as reasonable. In some cases, it may be that the reviewing court cannot adequately show deference without first providing the decision maker the opportunity to give its own reasons for the decision. It will generally be inappropriate to find that there is no reasonable basis for the tribunal’s decision without first giving the tribunal an opportunity to provide one.
Reasons given by a tribunal in other decisions on the same issue can assist a reviewing court in determining whether a reasonable basis for an implied decision exists. Other decisions by the Commissioner and the adjudicator have provided consistent analyses of the similarly worded s. 69(6) of the Freedom of Information and Protection of Privacy Act (“FOIPA”). The Commissioner has held that a similar 90‑day time limit in s. 69(6) applies only to his duty to complete an inquiry and not to extending time to complete an inquiry. His interpretation of s. 69(6) systematically addresses the text of that provision, its purposes, and the practical realities of conducting inquiries. His interpretation of s. 69(6) satisfies the values of justification, transparency and intelligibility in administrative decision making.
It is reasonable to assume that the Commissioner’s interpretations of s. 69(6) of FOIPA are the reasons of the adjudicator in this case. Both s. 50(5) of PIPA and s. 69(6) of FOIPA govern inquiries conducted by the Commissioner. They are identically structured and use almost identical language. It was reasonable for the adjudicator to apply the Commissioner’s interpretation of s. 69(6) of FOIPA to s. 50(5) of PIPA. The interpretation does not render statutory requirements of notice meaningless. No principle of statutory interpretation requires a presumption that an extension must be granted before the expiry of the 90‑day time limit simply because s. 50(5) is silent as to when an extension of time can be granted. The distinction between mandatory and directory provisions does not arise in this case because this is not a case of failure by a tribunal to comply with a legislative direction. Therefore, there exists a reasonable basis for the adjudicator’s implied decision in this case.
Per Binnie and Deschamps JJ.: There is agreement with Cromwell J. that the concept of jurisdiction is fundamental to judicial review of administrative tribunals and to the rule of law. Administrative tribunals operate within a legal framework dictated by the Constitution and limited by their respective statutory mandates and it is the courts that determine the outer limits of those mandates. On the other hand, the notion of a “true question of jurisdiction or vires” is not helpful at the practical everyday level of deciding whether or not the courts are entitled to intervene in a particular administrative decision.
The middle ground lies in the more nuanced approach adopted in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, that if the issue relates to the interpretation and application of a tribunal’s own statute, is within its expertise and does not raise issues of general legal importance, the standard of reasonableness will generally apply. The expression “issues of general legal importance” means issues whose resolution has significance outside the operation of the statutory scheme under consideration. “Reasonableness” is a deceptively simple omnibus term which gives reviewing judges a broad discretion to choose from a variety of levels of scrutiny from the relatively intense to the not so intense. The calibration will be challenging enough for reviewing judges without superadding an elusive search for something that can be labelled a true question of vires or jurisdiction.
On the other hand, Rothstein J.’s creation of a “presumption” based on insufficient criteria simply adds a further step to what should be a straightforward analysis. A simplified approach would be that if the issue before the reviewing court relates to the interpretation or application of a tribunal’s “home statute” and related statutes that are also within the core function and expertise of the decision maker, and the issue does not raise matters of legal importance beyond the statutory scheme under review, the Court should afford a measure of deference under the standard of reasonableness. Otherwise, the last word on questions of law should be left with the courts.
Per Cromwell J.: In this case the applicable standard of review is reasonableness. The Commissioner’s power to extend time is granted in broad terms in the context of a detailed and highly specialized statutory scheme which it is the Commissioner’s duty to administer and under which he is required to exercise many broadly granted discretions. The adjudicator’s decision on the timeliness issue should be reinstated and the matter should be remitted to the chambers judge to consider the issues not dealt with and resolved in the judicial review proceedings. Courts have a constitutional responsibility to ensure that administrative action does not exceed its jurisdiction, but they must also give effect to legislative intent when determining the applicable standard of judicial review. The standard of review analysis identifies the limits of the legality of a tribunal’s actions and defines the limits of the role of the reviewing court. When existing jurisprudence has not already satisfactorily determined the standard of review applicable to the case at hand, the courts apply several relevant factors. These factors allow the courts to identify questions that are reviewable on a standard of correctness. Elevating to a virtually irrefutable presumption the general guideline that a tribunal’s interpretation of its home statute will not often raise a jurisdictional question goes well beyond saying that deference will usually result where a tribunal’s interpretation of its home statute is in issue. The terms “jurisdictional” and “vires” are unhelpful to the standard of review analysis but true questions of jurisdiction and vires do exist. There are legal questions in “home” statutes whose resolution legislatures do not intend to leave to the tribunal. As this Court’s recent jurisprudence confirms, as a matter of either constitutional law or legislative intent, a tribunal must be correct on certain issues. The fact that s. 50(5) of PIPA is in the Commissioner’s home statute did not relieve the reviewing court of its duty to consider the argument that the provision was one whose interpretation the legislator intended to be reviewed for correctness, by examining the provision and other relevant factors.
Cases Cited
By Rothstein J.
Discussed: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; distinguished: Kellogg Brown and Root Canada v. Information and Privacy Commissioner (Alta.), 2007 ABQB 499, 434 A.R. 311; referred to: Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; Toussaint v. Canada Labour Relations Board (1993), 160 N.R. 396; Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233; Shubenacadie Indian Band v. Canada (Human Rights Commission), [1998] 2 F.C. 198; Legal Oil & Gas Ltd. v. Surface Rights Board, 2001 ABCA 160, 303 A.R. 8; United Nurses of Alberta, Local 160 v. Chinook Regional Health Authority, 2002 ABCA 246, 317 A.R. 385; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650; Waters v. British Columbia (Director of Employment Standards), 2004 BCSC 1570, 40 C.L.R. (3d) 84; Alberta v. Nilsson, 2002 ABCA 283, 320 A.R. 88; A.C. Concrete Forming Ltd. v. Residential Low Rise Forming Contractors Assn. of Metropolitan Toronto and Vicinity, 2009 ONCA 292, 306 D.L.R. (4th) 251; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, rev’g 2009 FCA 110, 389 N.R. 363, rev’g 2008 FC 12, 34 C.E.L.R. (3d) 138; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Syndicat des professeurs du collège de Lévis‑Lauzon v. CEGEP de Lévis‑Lauzon, [1985] 1 S.C.R. 596; Union des employés de commerce, local 503 v. Roy, [1980] C.A. 394; Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3, aff’g 2009 FCA 378, 315 D.L.R. (4th) 270, rev’g 2009 FC 271, 344 F.T.R. 45; Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678, aff’g sub nom. Kerry (Canada) Inc. v. DCA Employees Pension Committee, 2007 ONCA 416, 86 O.R. (3d) 1, rev’g sub nom. Nolan v. Superintendent of Financial Services (2006), 209 O.A.C. 21; Northrop Grumman Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50, [2009] 3 S.C.R. 309; Nor‑Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Petro‑Canada v. Workers’ Compensation Board (B.C.), 2009 BCCA 396, 276 B.C.A.C. 135; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504; Order P2008‑005; College of Alberta Psychologists, December 17, 2008, O.I.P.C.; Order F2006‑031; Edmonton Police Service, September 22, 2008, O.I.P.C.; Order F2008‑013; Edmonton (Police Service) (Re), [2008] A.I.P.C.D. No. 71 (QL); Order F2007‑014; Edmonton (Police Service) (Re), [2008] A.I.P.C.D. No. 72 (QL); Order F2008‑003; Edmonton Police Service, December 12, 2008, O.I.P.C.; Order F2008‑016; Edmonton (Police Service) (Re), [2008] A.I.P.C.D. No. 82 (QL); Order F2008‑017; Edmonton (Police Service) (Re), [2008] A.I.P.C.D. No. 79 (QL); Order F2008‑005; Edmonton (Police Service) (Re), [2008] A.I.P.C.D. No. 81 (QL); Order F2008‑018; Edmonton (Police Service) (Re), [2009] A.I.P.C.D. No. 3 (QL); Order F2008‑027; Edmonton (Police Service) (Re), [2009] A.I.P.C.D. No. 20 (QL); Order F2007‑031; Grande Yellowhead Regional Division No. 35, November 27, 2008, O.I.P.C.; British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41.
By Binnie J.
Discussed: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; referred to: Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425; Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339.
By Cromwell J.
Discussed: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; referred to: Nolan v. Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678; Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425; Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485; Northrop Grumman Overseas Services Corp. v. Canada (Attorney General), 2009 SCC 50, [2009] 3 S.C.R. 309.
Statutes and Regulations Cited
Constitution Act, 1867, s. 96 .
Federal Courts Act, R.S.C. 1985, c. F‑7, s. 18.1(4) (a).
Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F‑25, ss. 2(b), 69(6).
Personal Information Protection Act, S.A. 2003, c. P‑6.5, ss. 3, 7, 19, 43, 47, 50(5), 54(5) [rep. S.A. 2009, c. 50, s. 38].
Authors Cited
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Macaulay, Robert W., and James L. H. Sprague. Practice and Procedure Before Administrative Tribunals, vol. 3. Toronto: Carswell, 2004 (loose‑leaf updated 2010, release 6).
Mullan, David. “Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let’s Try Again!” (2008), 21 C.J.A.L.P. 117.
Mullan, David J. “The McLachlin Court and the Public Law Standard of Review: A Major Irritant Soothed or a Significant Ongoing Problem?”, in David A. Wright and Adam M. Dodek, eds., Public Law at the McLachlin Court: The First Decade. Toronto: Irwin Law, 2011, 79.
Sopinka, John, and Mark A. Gelowitz. The Conduct of an Appeal, 2nd ed. Toronto: Butterworths, 2000.
APPEAL from a judgment of the Alberta Court of Appeal (Berger, Watson and Slatter JJ.A.), 2010 ABCA 26, 21 Alta. L.R. (5th) 30, 474 A.R. 169, 479 W.A.C. 169, 316 D.L.R. (4th) 117, [2010] 8 W.W.R. 457, 1 Admin. L.R. (5th) 60, [2010] A.J. No. 51 (QL), 2010 CarswellAlta 94, affirming a decision of Marshall J. (2008), 21 Alta. L.R. (5th) 24, 1 Admin. L.R. (5th) 85, [2008] A.J. No. 1592 (QL), 2008 CarswellAlta 2300. Appeal allowed.
Glenn Solomon, Q.C., and Rob W. Armstrong, for the appellant.
Sandra M. Anderson and Anne L. G. Côté, for the respondent.
Written submissions only by David Loukidelis, Q.C., Veronica Jackson and Deanna Billo, for the intervener the Attorney General of British Columbia.
Written submissions only by T. Murray Rankin, Q.C., and Nitya Iyer, for the intervener the Information and Privacy Commissioner of British Columbia.
Brent B. Olthuis and Tam C. Boyar, for the intervener the B.C. Freedom of Information and Privacy Association.
The judgment of McLachlin C.J. and LeBel, Fish, Abella, Charron and Rothstein JJ. was delivered by
[1] Rothstein J. — Through the creation of administrative tribunals, legislatures confer decision-making authority on certain matters to decision makers who are assumed to have specialized expertise with the assigned subject matter. Courts owe deference to administrative decisions within the area of decision-making authority conferred to such tribunals. This appeal provides an opportunity for this Court to address the question of how a court may give adequate deference to a tribunal when a party raises an issue before the court on judicial review, which was never raised before the tribunal and where, as a consequence, the tribunal provided no express reasons with respect to the disposition of that issue.
[2] The context in which this issue arises is the judicial review of a decision of an adjudicator delegated by the appellant, the Information and Privacy Commissioner (“Commissioner”), finding that the respondent, the Alberta Teachers’ Association (“ATA”), had disclosed certain private information in contravention of the Personal Information Protection Act, S.A. 2003, c. P-6.5 (“PIPA”). In response to a number of complaints about an ATA publication of private information, the Commissioner started an investigation. At the time, the Commissioner’s enabling statute provided that an inquiry “must” be completed within 90 days of the complaint being received by the Commissioner, unless the Commissioner notifies the parties concerned that he is extending the period and provides an anticipated date for completing the inquiry (s. 50(5) PIPA). In dealing with the complaints against the ATA, the Commissioner took 22 months from the initial complaint before extending the estimated date on which the inquiry would be concluded. The adjudicator delegated by the Commissioner subsequently issued an order against the ATA before the anticipated date for completion and 29 months after the initial complaint was made.
[3] The issue of compliance with statutory timelines was not raised before the Commissioner or the adjudicator. The ATA applied for judicial review of the adjudicator’s order, arguing inter alia that the Commissioner had lost jurisdiction due to his failure to extend the period for completion of the inquiry within 90 days. The chambers judge granted the ATA’s application on this basis, quashing the adjudicator’s decision ((2008), 21 Alta. L.R. (5th) 24). This decision was upheld by a majority of the Court of Appeal (2010 ABCA 26, 21 Alta. L.R. (5th) 30).
[4] The Commissioner now appeals to this Court. There are three questions at issue: First, should the timelines issue have been considered on judicial review since it was not raised before the Commissioner or the adjudicator? Second, if the timelines issue should be considered, what is the applicable standard of review? Third, on the applicable standard of review, does the adjudicator’s continuation and conclusion of the inquiry, despite the Commissioner having provided an extension after 90 days, survive judicial review?
[5] For the reasons that follow, I would find that the timelines issue was subject to judicial review. Although the issue was not raised before the Commissioner or the adjudicator, it was implicitly decided by both the Commissioner and the adjudicator, and there was no evidentiary inadequacy or prejudice to the parties in this case. The implied decision of the Commissioner to extend the time after 90 days as implicitly adopted by the delegated adjudicator was reviewable on a reasonableness standard and I conclude that the adjudicator’s decision was reasonable. Accordingly, the Commissioner’s appeal should be allowed and the adjudicator’s order against the ATA reinstated.
I. Facts
[6] Between October 13 and December 2, 2005, ten individuals complained to the Office of the Information and Privacy Commissioner that the ATA disclosed their personal information, in contravention of PIPA. They alleged that the ATA did so by publishing their names together with a statement that they were no longer required to adhere to the ATA’s Code of Professional Conduct in a publication called the “ATA News”. The Commissioner’s office informed the ATA on October 27, 2005, that it was conducting an investigation. On July 25, 2006, the investigation was concluded and a report was given to the complainants. Although the record is not clear, from their subsequent action, it would appear that the report was not satisfactory to the complainants.
[7] In September 2006, the complainants requested that an inquiry under PIPA be conducted. On February 7, 2007, the complainants were notified that their request was being processed. On May 17, 2007, the Commissioner issued a Notice of Inquiry setting out a deadline of June 11, 2007, for written submissions (subsequently extended to July 25, 2007), and of August 8, 2007, for rebuttals. Although the timing is not disclosed in the record, the Commissioner did delegate an adjudicator to conduct the inquiry and issue a decision.
[8] On August 1, 2007, the Commissioner wrote to the parties informing them that he was extending the 90-day period set out in s. 50(5) PIPA and provided an anticipated date for completion of February 1, 2009. On March 13, 2008, an order was issued by the Commissioner’s delegated adjudicator. The adjudicator found that the ATA had disclosed the complainants’ personal information contrary to ss. 7 and 19 PIPA. The issue of compliance with the timelines set out in s. 50(5) PIPA was not raised before the adjudicator and the adjudicator’s reasons did not expressly address this issue.
[9] On April 25, 2008, the ATA filed an originating notice for judicial review of the adjudicator’s order. On judicial review, the adjudicator’s decision was quashed on the basis that the Commissioner lost jurisdiction for failing to comply with the timelines set out in s. 50(5) PIPA. By majority, the Court of Appeal upheld that decision.
II. Relevant Statutory Provisions
[10] The relevant statutory provisions, as they were worded at the relevant time, are:
Personal Information Protection Act, S.A. 2003, c. P-6.5
3 The purpose of this Act is to govern the collection, use and disclosure of personal information by organizations in a manner that recognizes both the right of an individual to have his or her personal information protected and the need of organizations to collect, use or disclose personal information for purposes that are reasonable.
43(1) The Commissioner may delegate to any person any duty, power or function of the Commissioner under this Act except the power to delegate.
(2) A delegation under subsection (1) must be in writing and may contain any conditions or restrictions the Commissioner considers appropriate.
47(1) To ask for a review or to initiate a complaint under this Part, an individual must, as soon as reasonable, deliver a written request to the Commissioner.
(2) A written request to the Commissioner for a review of a decision of an organization must be delivered within
(a) 30 days from the day that the individual asking for the review is notified of the decision, or
(b) a longer period allowed by the Commissioner.
(3) A written request to the Commissioner initiating a complaint must be delivered within a reasonable time.
(4) The time limit in subsection (2)(a) does not apply to delivering a written request for a review concerning an organization’s failure to respond within a required time period.
50 . . .
(5) An inquiry into a matter that is the subject of a written request referred to in section 47 must be completed within 90 days from the day that the written request was received by the Commissioner unless the Commissioner
(a) notifies the person who made the written request, the organization concerned and any other person given a copy of the written request that the Commissioner is extending that period, and
(b) provides an anticipated date for the completion of the review.
III. Judicial History
A. Court of Queen’s Bench of Alberta, (2008), 21 Alta. L.R. (5th) 24
[11] In reasons delivered orally, Marshall J. noted that a preliminary question raised by the ATA was whether the Commissioner had lost jurisdiction over the inquiry as a result of his failure to complete the inquiry within the timelines set out in s. 50(5) PIPA. Relying on Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, for the principle that “the standard of correctness still applies to matters of jurisdiction and some other matters of law” (at para. 10), he held that this question was reviewable on a standard of correctness.
[12] According to Marshall J., the reasons of Belzil J. in Kellogg Brown and Root Canada v. Information and Privacy Commissioner (Alta.), 2007 ABQB 499, 434 A.R. 311, were compelling and entirely applicable in this case. Following that decision, he held that the timelines for completing a review set out in s. 50(5) are mandatory, employing the word “must” (at para. 7) and not directory. He also held that it was not necessary for him “to determine whether an extension of time must be given within the 90-day period. The time period is substantially breached in any event” (para. 12).
[13] Marshall J. then addressed the issue of unfairness raised by the Commissioner. He noted that various authorities had held that the court should not consider an issue which was not raised before a tribunal. He rejected as speculation the Commissioner’s submission that, since the individual complainants were not before the court, the court would not have the benefit of additional facts available from them. He further held that “[t]he legislature has clearly stated that timely disposition of complaints is essential in a proceeding under the Act” (at para. 11) and that the “matter was not conducted in a manner required by the legislature, so it can be said that the proceedings must be found to be invalid” (para. 11).
[14] Marshall J. granted the ATA’s application and quashed the Commissioner’s decision. However, he declined to order costs against the Commission, partly because a tribunal is rarely required to pay costs and partly because the timelines issue could have been raised before the Commissioner (para. 18).
B. Alberta Court of Appeal, 2010 ABCA 26, 21 Alta. L.R. (5th) 30 (Watson J.A. (Slatter J.A. Concurring) and Berger J.A. Dissenting)
(1) The Majority — Watson J.A.
[15] Watson J.A. was of the view that since the adjudicator never got a chance to say anything on the question being considered on judicial review, it was not necessary to determine the appropriate standard of review. Rather, he appears to have determined the issue of timeliness de novo.
[16] Watson J.A. affirmed that the timelines issue ought to have been raised before the Commissioner. Objections to a tribunal’s ability to make a lawful decision should be made first to the challenged tribunal. The failure to raise the issue before the adjudicator was a defect in process that should not be encouraged and should not generally occur. He nonetheless did not reverse the judicial review decision on this ground and was of the opinion that the Court of Appeal was in a position to consider the matter.
[17] Watson J.A. found that the language of the section spoke to “extending that period” in a manner that connoted doing the “extending” while the 90 days was still running. Since the Commissioner had not extended the period within 90 days, the adjudicator’s decision was not rendered within the statutory timelines. He held that the time rules specified in s. 50(5) PIPA were mandatory and that the consequence of breaching them was the presumptive termination of the inquiry process. Contrary to the decision of the chambers judge that the consequence of non-compliance with s. 50(5) was the automatic and incurable termination of the proceedings, the reasons of the Commissioner might justify the breach and overcome the presumption of termination. However, the chambers judge had concluded that “[t]he time period is substantially breached in any event” (para. 12). Under those circumstances, the presumption of termination was not overcome. Watson J.A. therefore upheld the trial judge’s decision to quash the adjudicator’s decision.
(2) The Dissent — Berger J.A.
[18] In dissent, Berger J.A. concluded that PIPA authorized the Commissioner to extend the 90-day period either before or after the expiry of that period. When a provision is silent as to when an extension of time can be granted, there is no presumption that the extension must be granted before expiry. An interpretation of s. 50(5) that allows the Commissioner to extend the 90-day period after it expires is consistent with legislative intent because it maintains the protection of the individuals’ rights to privacy which PIPA strives to ensure. In the present case, by the time the 90-day period had expired, the inquiry process was engaged and had progressed with the parties’ participation. Because they were involved, the parties were aware that the process would continue beyond 90 days. The goals of timely resolution and keeping parties informed would not have been enhanced by requiring the Commissioner to formally communicate with the parties within 90 days.
[19] Berger J.A. found that quashing the adjudicator’s order without the benefit of reasons compromised judicial review. The court generally will not decide on judicial review a question which was not put to the administrative tribunal. Without the benefit of the Commissioner’s expertise and analysis relative to the questions of mixed law and fact in this case, the curial deference normally accorded to the Commissioner was rendered nugatory, thereby fettering a thorough and meaningful judicial review.
[20] Berger J.A. would have allowed the appeal and restored the adjudicator’s order.
IV. Analysis
[21] This appeal raises three issues, which I shall consider in turn. First, should the timelines issue have been considered on judicial review since it was not raised before the Commissioner or the adjudicator? Second, if the timelines issue should be considered, what is the applicable standard of review? Third, on the applicable standard of review, does the continuation and conclusion of the inquiry, despite providing an extension after 90 days, survive judicial review?
A. Judicial Review of an Issue That Was Not Raised Before the Tribunal
[22] The ATA sought judicial review of the adjudicator’s decision. Without raising the point before the Commissioner or the adjudicator or even in the originating notice for judicial review, the ATA raised the timelines issue for the first time in argument. The ATA was indeed entitled to seek judicial review. However, it did not have a right to require the court to consider this issue. Just as a court has discretion to refuse to undertake judicial review where, for example, there is an adequate alternative remedy, it also has a discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so: see, e.g., Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, per Lamer C.J., at para. 30: “[T]he relief which a court may grant by way of judicial review is, in essence, discretionary. This [long-standing general] principle flows from the fact that the prerogative writs are extraordinary [and discretionary] remedies.”
[23] Generally, this discretion will not be exercised in favour of an applicant on judicial review where the issue could have been but was not raised before the tribunal (Toussaint v. Canada Labour Relations Board (1993), 160 N.R. 396 (F.C.A.), at para. 5, citing Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233 (C.A.), at p. 247; Shubenacadie Indian Band v. Canada (Human Rights Commission), [1998] 2 F.C. 198 (T.D.), at paras. 40-43; Legal Oil & Gas Ltd. v. Surface Rights Board, 2001 ABCA 160, 303 A.R. 8, at para. 12; United Nurses of Alberta, Local 160 v. Chinook Regional Health Authority, 2002 ABCA 246, 317 A.R. 385, at para. 4).
[24] There are a number of rationales justifying the general rule. One fundamental concern is that the legislature has entrusted the determination of the issue to the administrative tribunal (Legal Oil & Gas Ltd., at paras. 12-13). As this Court explained in Dunsmuir, “[c]ourts . . . must be sensitive . . . to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures” (para. 27). Accordingly, courts should respect the legislative choice of the tribunal as the first instance decision maker by giving the tribunal the opportunity to deal with the issue first and to make its views known.
[25] This is particularly true where the issue raised for the first time on judicial review relates to the tribunal’s specialized functions or expertise. When it does, the Court should be especially careful not to overlook the loss of the benefit of the tribunal’s views inherent in allowing the issue to be raised. (See Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at para. 89, per Abella J.)
[26] Moreover, raising an issue for the first time on judicial review may unfairly prejudice the opposing party and may deny the court the adequate evidentiary record required to consider the issue (Waters v. British Columbia (Director of Employment Standards), 2004 BCSC 1570, 40 C.L.R. (3d) 84, at paras. 31 and 37, citing Alberta v. Nilsson, 2002 ABCA 283, 320 A.R. 88, at para. 172, and J. Sopinka and M. A. Gelowitz, The Conduct of an Appeal (2nd ed. 2000), at pp. 63-68; A.C. Concrete Forming Ltd. v. Residential Low Rise Forming Contractors Assn. of Metropolitan Toronto and Vicinity, 2009 ONCA 292, 306 D.L.R. (4th) 251, at para. 10 (per Gillese J.A.)).
[27] Watson J.A., for the majority of the Court of Appeal, acknowledged that “[t]he judicial review was adversely affected by the fact that the adjudicator did not hear and consider the objection”, under s. 50(5) PIPA, to the Commissioner’s authority to proceed. It was a “defect in the process” that should “not . . . be encouraged and should not generally occur” (para. 18). He nev