Canada: The Right To Privacy Versus The Right To Information From Administrative Tribunals

"Openness fosters the fair administration of justice and, like a watchdog, protects citizens from arbitrary state action."

- Justice Deschamps for the majority in Canadian Broadcasting Corp. v Canada (Attorney General) [2011] 1 SCR 19.

I. Introduction

The principle of open justice has long been required by the common law. It is also entrenched in section 2(b) of the Charter of Rights and Freedoms ("Charter") ("[e]veryone has the following fundamental freedoms: ...(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media communication."). The press and the public enjoy rights of free speech and expression under the Charter and can rely on the Charter to pursue access to criminal and regulatory hearings and to information related thereto.

It is important to remember, however, that the right to free speech and expression must be interpreted in a manner that does not interfere with the right to a fair trial found in section 11(d) of the Charter and the right to privacy encompassed in sections 7 and 8 of the Charter.

Section 24 of the Charter sets forth the remedy available to anyone if a breach of their Charter rights is established. However, Canadian jurisprudence is still struggling to establish the appropriate remedy under the Charter in regulatory and administrative environments.

II. Common Law & Charter of Rights and Freedoms

Much of the judicial dialogue regarding one's right to privacy in a litigation environment arises in criminal and family law proceedings. The courts and the legislature have consistently upheld the importance of protecting and concealing victim identities or information that could have reputational implications during a family law proceeding. However, a more controversial area of this debate is whether regulatory and administrative tribunals should bear similar obligations and limitations.

Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835 ("Dagenais") and R v Mentuck, [2001] 3 SCR 442 ("Mentuck")

Arguably the most significant decisions in the debate between privacy and open justice are the opinions of the Supreme Court of Canada in Dagenais and Mentuck. Both cases involved requests for publication bans by the defendants in criminal trials. Chief Justice Lamer, for the majority, wrote that judges have a common law discretionary authority to impose publication bans on information revealed in a criminal trial, but, first, must balance competing rights such as freedom of expression and the right to a fair trial. In these cases, the Supreme Court of Canada developed the following two-part test:

  1. Is the ban necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alterative measures will not prevent the risk?
  2. Do the salutary effects of the ban outweigh the deleterious effects of the free expression of those affected by the ban?

Vancouver Sun (Re), 2004 SCC 43 ("VancouverSun ")

This Supreme Court of Canada further developed the Dagenais/Mentuck test in Vancouver Sun. This case involved an application by a newspaper for access to all materials filed in relation to an in camera examination of a potential Crown witness pursuant to section 83.28 of the Criminal Code. The Court held that proper balance between investigative objectives and the value of openness should be achieved through a discretion granted to judges to impose terms and conditions on the conduct of a hearing. The Court further declared that as much information about the nature of the order as could be revealed without jeopardizing the prosecution should be revealed to all parties subject to the total or partial publication ban, as applicable.

The Supreme Court of Canada noted that the test outlined in Dagenais/Mentuck was not just applicable to publication bans, but also to discretionary judicial decisions or orders that threaten an infringement of a Charter right. Consequently, any decision of a regulatory or administrative tribunal that limits access to documents can trigger a Charter challenge based on the open courts principle. However, there is some Canadian jurisprudence that suggests administrative tribunals and regulatory bodies are not always required to maintain the same level of openness as a superior court.

Ontario (Community Safety and Correctional Services) v Ontario (Information and Privacy Commissioner), 2014 SCC 31

This Supreme Court of Canada case involved a request for disclosure from the Ministry of Community Safety and Correctional Services of the number of registered sex offenders residing within the area designated by the first three digits of Ontario's postal codes. The registry is established and maintained under Christopher's Law (Sex Offender Registry), 2000 ("Christopher's Law"), which requires the information contained in the registry to be kept confidential by the Ministry and the Police.The Ministry refused to disclose, citing law enforcement and personal privacy exemptions in the Freedom of Information and Protection of Privacy Act (Ontario). The Information and Privacy Commissioner of Ontario held that the exemptions do not apply and ordered disclosure. The Commissioner's decision was upheld on judicial review and on appeal.

Justice Cromwell and Justice Wagner, for the majority, held that the Commissioner made no reviewable error in ordering disclosure. The Commissioner was required to interpret Christopher's Law for the narrow purpose of determining whether it contained a confidentiality provision that prevails over the Freedom of Information and Protection of Privacy Act. The Supreme Court found that explicit references to Freedom of Information and Protection of Privacy Act in Christopher's Law indicate that the Legislature considered the manner in which both statutes were to operate together. The Court further held that based on the evidence and arguments before the Commissioner, she properly focused on the reasonableness of any expectation that the requested disclosure would lead to the identification of sex offenders or their home addresses.

Robertson v Edmonton (City) Police Service, 2004 ABQB 519 ("Robertson")

The Court of Queen's Bench of Alberta in Robertson considered a regulation under the Police Act, that enabled the Edmonton Chief of Police to order a police disciplinary hearing to be held in private. The Court of Queen's Bench held that the regulation was valid under the Charter and that there was nothing "automatically objectionable" about a regulation that provides for closed hearings in some cases. The Court concluded that "it cannot be assumed that an administrative tribunal is subject to a constitutional requirement to have the same degree of openness as a court."

Pacific Press Ltd. v Canada, [1991] 2 FC 327 (CA) ("Pacific Press")

In contrast to Robertson, the Federal Court of Appeal decision in Pacific Press held that a provision of the Immigration Act that requires inquiries to be held in camera, unless an adjudicator was satisfied that opening the inquiry would not impede the inquiry or adversely affect the claimant, breached the Charter because the discretion afforded to the adjudicator was too narrow.

III. Freedom of Information and Protection of Privacy Act

In Alberta there are approximately 93 regulatory agencies. Many of these are considered 'public bodies' and are, therefore, subject to positive statutory obligations to protect personal information pursuant to the Freedom of Information and Protection of Privacy Act (Albert) ("FOIPPA").

Disclosure of personal information is only permitted with consent or as permitted by FOIPPA. Section 39(4) of FOIPPA states, "[a] public body may use personal information only to the extent necessary to enable the public body to carry out its purpose in a reasonable manner." With that limitation in mind, section 40 of FOIPPA provides a list of 34 circumstances that warrant non-consented disclosure. One must also determine if the disclosure meets the consistent purpose test in section 41, which states:

41 For the purposes of section 39(1)(a) and 40(1)(c), a use or disclosure of personal information is consistent with the purpose for which the information was collected or complied if the use or disclosure

(a) has a reasonable and direct connection with purpose, and

(b) is necessary for performing the statutory duties of, or for operating a legally authorized program of, the public body that uses or disclosures the information.

Currently, FOIPPA is silent regarding the disclosure of personal information in reasons for regulatory and administrative decisions. Each regulatory body and administrative tribunal is left to its own governing statute to determine how competing transparency and privacy rights are balanced. For instance, section 37(2) of the Mental Health Act (Alberta) mandates that review panels and hearings under various mental health statutes are presumptively private.

Some governing legislation for regulatory and administrative tribunals complicate, more than clarify, questions of transparency and privacy. For example, in 2012 the passing of the Responsible Energy Development Act amalgamated the Alberta environmental regulatory bodies into one overarching governing body, the Alberta Energy Regulators (the "AER"). The AER oversees the implementation of 10 statutes and corresponding regulations, each with differing governing provisions regarding privacy and transparency.

Pursuant to the Disclosure of Information Regulation under the Environmental Protection and Enhancement Act, one must first request information from the "appropriate person" and if the requester does not receive the information within 30 days, then the requester can apply to Alberta Environment to obtain the information. AER is then required to consider the applicable governing statute and discern the appropriate level of disclosure. Any scientific and technical information requests regarding the condition of an environmental site is managed under FOIPPA. Section 35(5) of the EPEA prohibits the release of information or records concerning an open investigation or enforcement. Whether one is acting on behalf of the requester or for a company subject to a request, navigating through the numerous statutes and corresponding regulations can be cumbersome and confusing.

Another example of the applicability of FOIPPA in an administrative setting is the protection of a professional's reputation during a disciplinary investigation or hearing. While administrative tribunals and regulatory bodies may create their own disclosure and privacy policies, the policies must align with FOIPPA.

Alberta Health Services, OIPC Order No. H2011-001

This case surrounds a complaint to the Commissioner regarding Alberta Health Service's collection, use and disclosure of the complainant's health information. As an employee of AHS, the complainant attended addiction counselling. His addictions counsellor provided the information she obtained from him to the human resources department of AHS. AHS then used the information collected to conduct a human resources investigation. AHS also disclosed the information to the complaints officer of a professional body of which the complainant was a member.

The first issue the Commissioner considered was whether the Health Information Act ("HIA") or FOIPPA applied to the complaint. The Commissioner concluded that AHS had collected the complainant's health information pursuant to HIA, which is carved out by section 4(1)(u) of FOIPPA. The Commissioner held that in the absence of the complainant's consent, the physician was not authorized by FOIPPA to provide information to AHS for human resources purposes.

The Commissioner then considered whether HIA authorized AHS to collect and use the complainant's health information. Section 27 of HIA outlines an exhaustive list of purposes for which health information may be used and section 20 of HIA authorizes the collection of health information to carry out one of those purposes. In this regard, the Commissioner concluded the following:

... I find that when the Complainant's individually indentifying health information was transferred between the addictions counsellor and the acting manager and employees of human resources, for the purpose of conducting a human resources investigation, that this was an internal use of health information, and was in contravention of both sections 22 and 27.

The disclosure of the complainant's health information to his professional body was also found to be in contravention of section 34 of HIA, which required the complainant's consent. Further, the Commissioner rejected AHS' argument that section 57(1) of the Health Professions Act required disclosure of health information to a disciplinary body where the information is relevant to a complaint of misconduct. The Commissioner held that this provision does not apply because it already concluded that AHS collected and used the information in contravention of HIA, and stated:

In my view, another enactment of Alberta cannot be interpreted as anticipating that a custodian would obtain and use health information in contravention of the HIA, or authorizing it to do so. As AHS contravened HIA ... I find that the Health Professions Act cannot serve as authorization for AHS to do anything further with the Complainant's health information.

Law Enforcement Review Board Department of Justice, OIPC Order No. 96-003

This Alberta decision surrounds an application made in September 1995 to the Alberta Law Enforcement Review Board for access to records that the applicant believed existed on his police file. The Commissioner found that some severing of information from records was required before the disclosure could be made in the form of an internal bulletin and final report to the Chief of Police. The names and other identifying information of third parties who had provided information about the applicant were required to be severed from the record.

Dr. Q v College of Physicians and Surgeons of British Columbia, 1999 BCCA 53 ("Dr. Q")

The Dr. Q case involved an appeal by a doctor from a decision of a B.C. Supreme Court judge in chambers refusing two requests for an order protecting Dr. Q's anonymity during his appeal to the provincial Superior Court and for an injunction preventing the College from releasing a summary of the case to the media. The applicant relied on section 70 of the Medical Practitioners Act, which provides for confidentiality in the disciplinary process, including in camera hearings.

The British Columbia Court of Appeal held that the reputation of a professional involved in a regulatory hearing is worthy of protection. The British Columbia Court of Appeal granted an injunction to allow anonymity of Dr. Q during an appeal and prevented the College from releasing case information to the media until the appeal was decided. The Court held:

While it may be said that the primary goal of the confidentiality is to protect complainants, I think it is also true to say that doctors are intended to be protected. There is a public interest in not damaging professional reputations unnecessarily.

The Court of Appeal cited the Alberta Court of Queen's Bench case of King v Institute of Chartered Accounts of Alberta, [1983] 25 Alta LR (2d) 286, which held "[i]t is important to the welfare of members of the public who are clients of chartered accountants that the institute maintain its good name and the confidence of taxing authorities and financial institutions." In regard to the complainant's professional reputation, the Court held "[i]t would be unfortunate if this damage were caused by publication following which the Court of Appeal reversed the action of the institute."

IV. Personal Information Protection Act

Although most of Alberta regulatory bodies are considered 'public bodies' and therefore subject to FOIPPA, there are a select number of regulatory bodies that are subject to private sector privacy legislation, the Personal Information Protection Act (Alberta) ("PIPA"). In Alberta, this includes non-profit organizations, trade unions, private schools, partnerships, corporations, unincorporated associations, professional regulatory associations and any individual acting in a commercial capacity. Similar to FOIPPA, section 14 of PIPA provides a list of exceptions where collection of personal information of an individual is permitted without consent. Section 16 of PIPA provides a limitation on the use of all collected personal information:

16(1) An organization may use personal information only for purposes that are reasonable.

(2) Where an organization uses personal information, it may do so only to the extent that is reasonable for meeting the purposes for which the information is used.

Law Society of Alberta, OIPC Order No. P2006-004

This Alberta decision surrounds a complainant's request for personal information pertaining to complaints he made to the Law Society of Alberta about various lawyers. He was not satisfied with the Law Society's responses and alleged the Law Society improperly used and disclosed his personal information. The Commissioner found that the requests did not constitute requests for his own "personal information". The Commissioner found that PIPA did not govern what information the Law Society was to provide to an applicant under the Legal Profession Act. The Commissioner therefore dismissed the complaint and found that the Law Society of Alberta had properly used and disclosed the information to process his complaint and had complied with the duty to establish policies under PIPA.

Real Estate Council of Alberta, OIPC Order No.P2010-019

The complainant in this case alleged that the Real Estate Council of Alberta ("RECA") posted a disciplinary decision on its website, thereby disclosing his personal information in breach of PIPA. The adjudicator found that RECA had the authority to disclose the complainant's personal information under section 20(b), which permits the organization to disclose information pursuant to a statute or regulation of Alberta or Canada that authorizes disclosure. Further, the adjudicator found that RECA had done so for reasonable purposes under the requirements outlined in section 19 of PIPA.

V. Administrative Tribunal Immunity

Many tribunals and regulatory bodies are protected by statutory immunity provisions for disclosure of information and records made in good faith. For example, section 74 of the federal Privacy Act, section 60 of FOIPPA and section 42 of PIPA all provide a good faith protection clause. Further, Alberta courts have upheld this protection and in one instance applied it to the Commissioner's detriment in denying an application of the Commissioner for an injunction. Details of the denial are set forth in the following paragraph.

Alberta (Information and Privacy Commissioner) v Alberta Federation of Labour, 2005 ABQB 927

This Alberta Queen's Bench case surrounds an application by the Commissioner to declare three documents to be privileged and confidential. The Commissioner also sought a quia timet injunction to enforce that privilege. The Alberta Labour Relations Board refused to grant the respondent access to 341 documents it requested, so the Board delivered the documents to the Commissioner to conduct an inquiry about access to them. Three of the documents were accidentally disclosed by the Commissioner to the respondent. The Commissioner commenced the action and application after the Federation distributed the documents to its members. The Federation was unaware of the Commissioner's mistake when it distributed the documents.

When assessing whether to grant an injunction, the second branch of the test required the Court to consider whether the applicant will suffer irreparable harm if the application is refused. The Court of Queen's Bench relied on section 60 of FOIPPA and held, the Commissioner "... has statutory immunity for any actions carried out by his Office in good faith. He and his staff are protected so they cannot suffer any damage if they are sued for inadvertent disclosure."

VI. Going Forward

Balancing regulatory and administrative transparency and the right to privacy is an ongoing debate and triggers many complex issues regarding open justice, Charter rights and the protection of personal information of individuals.

In its November 2002 report, the Alberta Select Special Freedom of Information and Protection of Privacy Act Review Committee (the "Committee") considered a range of options and found that each tribunal is in the best position to advise on the appropriateness of disclosure of personal information in its decisions. The Committee also recommended:

32. That authority for disclosure of personal information in decisions of administrative tribunals be established in the tribunal's governing legislation, and that consideration be given to facilitating the amendment of affected Acts through the use of an omnibus bill in which legislation could be included at the request of individual ministries.

British Columbia and Ontario have already passed omnibus statues, the Administrative Tribunals Act (British Columbia) and the Statutory Powers Procedure Act (Ontario). No such omnibus bill has been introduced in the Alberta legislature.

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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