SCC says privacy commissioner was right to extend review period

SCC says privacy commissioner was right to extend review period
The Supreme Court has made the difficult-to-deal-with standard of review easier, says one lawyer.
The Supreme Court has upheld the decision of an Alberta privacy commission adjudicator in a case that challenged the timeline for the standard of review when dealing with a complaint.
In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, the SCC decided that just because a review process went over the set 90-day statutory timeline for review by the privacy commission doesn’t mean it should automatically end the inquiry.

The case arose when individuals issued complaints to Alberta’s information and privacy commissioner that the Alberta Teachers’ Association had breached their privacy in a publication called ATA News. Although the complainants asked the commissioner to proceed to formal inquiry in September 2006, the adjudicator’s decision was not issued until March 13, 2008.

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. (The time period is now one year.) 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.

Following the judicial review of a decision of an adjudicator delegated by the information and privacy commissioner of Alberta, it was found that the Alberta Teachers’ Association, had disclosed certain private information in contravention of the Personal Information Protection Act. In response to the complaints about the association’s publication of private information, the commissioner started an investigation.

The Supreme Court, in its decision, laid out three questions at issue: 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?

“Certainly all of the judges in this decision were clear they were going to defer to the original decision here,” says Paul Broad of Hicks Morley Hamilton Stewart Storie LLP. “They all agreed the proper way to review it and the decision itself was reasonable. Just because they went over the 90-day period doesn’t automatically end the process. The deference to the adjudicators, especially in the privacy realm, by the Supreme Court means the commissioner’s office will be happy because it means they will likely have their decisions upheld,” says Broad.

With privacy requests and complaints, once they are at the commissioner’s level they will try and resolve it. If they can’t then a hearing is held with submitted written materials.

“That takes quite a bit of time so the commissioner was extending the 90-day period and very often did not extend it until after 90 days had passed, so that was the decision the Alberta Court of Appeal made, that once passed 90 days you can’t issue a decision at all,” says Broad.

The most important aspect of the decision, says Hendrik Nieuwland of Shields O’Donnell MacKillop LLP, is that Justice Marshall Rothstein has said the true jurisdictional question doesn’t exist anymore.

“He has effectively said you can get so wrapped up in the jurisdictional question as opposed to the merits. The statute said when a complaint is received a decision has to be made within 90 days, but the subsection said the commission can extend the deadline, so the question became can you extend the deadline after the 90 days has expired. It is a simple question and it made it all the way to the Supreme Court of Canada but the only reason why it did is the issue of standard of review,” says Nieuwland.

“The Supreme Court has really taken it upon itself to make standard of review easier because it’s been so difficult to deal with over the last 20 years.”

Broad says the decision still leaves some questions.

“It says that when adjudicators are making decisions we should respect it, but they also want to make sure the courts have a jurisdiction as well and that’s where the tension becomes because it can be difficult to draw those lines. A lot of judges in the lower courts will think the adjudicators were wrong, but when there are several potential ways something can be decided that’s their decision, not the courts. It does make it difficult to advise clients on whether to challenge an adjudicated decision,” he says.

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