Case arose from ex-employee’s access-to-info request, complaint with privacy commissioner
In an application alleging that the Toronto-Dominion Bank had contravened the Personal Information Protection and Electronic Documents Act, 2000 (PIPEDA), Canada’s Federal Court denied three motions by the former bank employee and the bank’s motion to dismiss the application.
In Miller v. Toronto-Dominion Bank, 2026 CanLII 33018 (FC), the applicant worked for the respondent bank for around eight years, went on medical leave, and accepted long-term disability benefits via the bank’s insurer.
In early 2017, the bank approved a national restructuring program that eliminated some positions, including the applicant’s. The initiative “mapped” him into a different role at another branch.
Since his demotion in 2018, the applicant has brought at least 12 proceedings before the Federal Court, the Ontario Court of Justice, and the Canada Industrial Relations Board, including a judicial review application challenging the Canadian Human Rights Tribunal’s dismissal of his complaint under s. 7 of the Canadian Human Rights Act, 1985.
Last February, the Federal Court dismissed the judicial review application against this dismissal and characterized the cumulative impact of the applicant’s efforts as an abuse of process.
Access-to-information proceedings
In August 2018, the applicant filed an access-to-information request with the bank. He then filed a complaint with the Office of the Privacy Commissioner (OPC) because he found the materials provided by the bank insufficient.
After corresponding with the OPC, the bank agreed to give the applicant specific additional information. On Jan. 19, 2021, the OPC communicated that it would close the file, as the bank had agreed to release some records to the applicant after applying appropriate exemptions.
On July 11, 2025, the applicant applied for a declaration that the bank had breached the PIPEDA by failing to provide access to personal information, failing to openly and accountably use and retain equity and demographic data, and destroying or withholding complaint records.
Four motions came before the Federal Court. The court dismissed:
- the applicant’s motion to compel further answers to cross-examination questions
- his motion to amend the notice of application and other relief
- his motion for leave to rely on a further affidavit
- the bank’s motion to quash and dismiss the application for delay
Motion for more answers
In rejecting this motion, the Federal Court found that the bank answered all the cross-examination questions, apart from question 40, which the court considered overly broad.
The court ruled that the applicant, who failed to establish why it should compel additional answers, could raise his issues regarding the bank’s answers at the merits hearing.
The court rejected the applicant’s argument that more answers were necessary because the bank no longer employed those responsible for responding to his access request. The court noted that:
- Any record searches would have occurred up to eight years ago
- The OPC notified the applicant in early 2021 that it would close the file
- He should have expected staff turnover in the intervening period
Motion to amend
The Federal Court determined that letting the applicant fundamentally revise and reframe the notice of application, plus the evidence so far exchanged, would not serve the interests of justice.
According to the court, allowing the applicant to reset the nature of the proceeding and edit the essence of the evidence would go against the guiding principles of r. 3 of the Federal Courts Rules, SOR/98-106.
The court added that the applicant failed to specify which affidavits and exhibits it should remove.
Motion to add affidavit
The Federal Court held that the proposed new evidence – the ad hoc federal privacy commissioner’s Mar. 26, 2026 “report of findings” – would not help resolve the applicant’s other two motions or his application on the merits.
The court noted that the report, which addressed a complaint regarding the OPC’s disclosures rather than the bank’s, could potentially confirm the applicant’s pattern of dissatisfaction with the responses of the bank and others, and his commencement of numerous unsuccessful proceedings to obtain documents.
Motion to dismiss for delay
The Federal Court acknowledged the bank’s compelling argument that the applicant began the proceeding long after the relevant deadline in s. 14(2) of PIPEDA.
However, the court concluded that the merits hearing judge would determine whether to exercise their discretion to permit the applicant to bring the proceeding years after the OPC’s communication that it would close the file.
The court noted that its denial of the bank’s motion would not prejudice the bank’s potential arguments in support of the dismissal of the application during the merits hearing.
