Canada: SCC Rules One-Year Delay Of Privacy Inquiry Reasonable

In Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, the Supreme Court of Canada (the Court) addressed the consequences of an administrative decision-maker, the Alberta Office of the Information and Privacy Commissioner (the Commissioner), failing to comply with statutory time periods in the Alberta Personal Information Protection Act (PIPA).

The majority of the Court held that where an administrative decision-maker interprets or applies its home statute, it will be presumed that a reviewing court will apply a standard of reasonableness, subject to limited exceptions. In this case, the Commissioner was interpreting his home statute and his decision was therefore reviewable on a standard of reasonableness. As the Commissioner's interpretation of the time periods in PIPA was reasonable, the apparent failure to comply with those time periods did not justify quashing the Commissioner's decision.

Background

In 2005, several individuals complained to the Commissioner that the Alberta Teachers' Association (the ATA) had disclosed their personal information in contravention of PIPA. In September 2006, the complainants made a written request to the Commissioner for an inquiry to be conducted.

At the time, s. 50(5) of PIPA stated:

An inquiry into a matter that is the subject of a written request ... must be completed within 90 days from the day that the written request was received by the Commissioner unless the Commissioner
  • 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
  • provides an anticipated date for the completion of the review (emphasis added).

On August 1, 2007, nearly 11 months after the written request for an inquiry was submitted, the Commissioner informed the parties that he was extending the 90-day period set out in s. 50(5) of PIPA.

On March 13, 2008, the Commissioner's delegated adjudicator found that the ATA had disclosed personal information contrary to PIPA.

The ATA applied for judicial review of the adjudicator's decision and raised, for the first time, the issue that the Commissioner had lost jurisdiction for failing to comply with s. 50(5) of PIPA. On judicial review, the Alberta Court of Queen's Bench quashed the decision on the basis that the Commissioner had lost jurisdiction. The Alberta Court of Appeal upheld this decision of the Court of Queen's Bench.

Standard of Review

The main issue addressed by the Court was whether the Commissioner's inquiry automatically terminated as a result of the Commissioner's failure to extend the 90-day period in s. 50(5) of PIPA within that period. The Court considered whether the Commissioner's decision regarding the time periods in s. 50(5) should be given deference and reviewed on a standard of reasonableness, or whether it should be reviewed on a standard of correctness.

The majority judgment was delivered by Rothstein J. (McLachlin C.J., LeBel, Fish, Abella and Charron JJ. concurring). Justice Rothstein discussed the uncertainty surrounding the applicable standard of review and the confusion both counsel and judges faced, and held that a standard of reasonableness is to be presumed when an administrative decision-maker interprets or applies its home statute. Justice Rothstein held, however, that this presumption could be rebutted if a party could demonstrate that a "true question of jurisdiction" existed. Justice Rothstein discussed that he was unable to define what might constitute a true question of jurisdiction and that the onus was on counsel to satisfy a court that a true question of jurisdiction existed in a particular case.

Justice Rothstein noted that a standard of correctness would always apply, even when a tribunal is interpreting or applying its home statute, when an issue is:

  • a constitutional question;
  • a question of central importance to the legal system as a whole and is outside the adjudicator's expertise; or
  • a question regarding the jurisdictional lines between competing specialized tribunals.

The Commissioner's decision regarding the timelines in s. 50(5) of PIPA involved the interpretation of the Commissioner's home statute. As the issue involved neither a true question of jurisdiction, nor one to which the standard of correctness would automatically apply, Rothstein J. held that the applicable standard of review was reasonableness.

Reasonableness of Commissioner's Decision

As the timelines issue was first raised on judicial review, the issue was neither directly considered by the Commissioner nor his delegated adjudicator. Justice Rothstein discussed that while the general rule was that judicial review would not be granted on an issue that was not raised before an administrative decision-maker, the Commissioner had made an implied decision regarding s. 50(5) when the inquiry was extended after the 90-day period had elapsed: failure to extend the inquiry within 90 days did not result in a loss of jurisdiction.

Rothstein J. reviewed previous decisions of the Commissioner, holding that those decisions provided consistent reasons to establish a reasonable basis for the Commissioner's implied interpretation of s. 50(5) of PIPA. Justice Rothstein held that it could be assumed that the reasons issued in past decisions of the Commissioner would have been the reasons of the adjudicator in the current case had the time periods issue been directly raised.

Justice Rothstein held that the Commissioner's interpretation that s. 50(5) of PIPA permitted an extension of an inquiry beyond 90 days was reasonable, in part, because:

  • the wording "within 90 days" only refers to the duty to complete the inquiry, not the power to extend that period;
  • the purpose of this provision – keeping parties informed and involved in the inquiry process – was still
  • fulfilled when an extension was granted after 90 days; and
  • the practical realities of completing an inquiry can make it impossible for adequate notice to be provided before the expiry of 90 days.

As there was a reasonable basis for the Commissioner's interpretation of s. 50(5) of PIPA, Rothstein J. restored the Commissioner's original order.

Implications

Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association clearly establishes that a reviewing court will give deference to the decisions of the commissioners regarding managing the process under their enabling statute. That deference will most certainly apply to the decisions of commissioners in other provinces operating under similar statutes. In many provinces, access requests, requests for review and the applicable inquiry process under both private-sector and public-sector privacy statutes takes much longer than the timelines specified in the home statute which can make filing privacy complaints cumbersome in the circumstances. Provided, however, that the applicable commissioner has come to a reasonable basis for any decision to extend timelines, there will likely be very little a member of the public can do to have that decision reviewed since a court will not overturn the decision, except in the limited circumstances described by the Supreme Court of Canada.

In order to successfully quash a decision of a privacy commissioner, an applicant must either:

1. Establish that the appropriate standard of review is correct by persuading a reviewing court that the question is:

  • a "true question of jurisdiction";
  • a constitutional question;
  • a question of central importance to the legal system as a whole and is outside the adjudicator's expertise; or
  • a question regarding the jurisdictional lines between competing specialized tribunals,

and persuade that court that the commissioner did not come to the correct decision; or

2. Establish that there is no reasonable basis for the decision of the commissioner.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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