Englander v. Telus Communications Inc., 2004 FCA 387 (2004)

Extract

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Englander v. Telus Communications Inc., 2004 FCA 387 (2004)

Date: 20041117

Docket: A-388-03

Citation: 2004 FCA 387

CORAM: DÉCARY J.A.

NADON J.A.

MALONE J.A.

BETWEEN:

MATHEW ENGLANDER

Appellant

and

TELUS COMMUNICATIONS INC.

Respondent

and

PRIVACY COMMISSIONER OF CANADA

Intervener

Heard at Vancouver, British Columbia, on October 7, 2004.

Reasons for judgment rendered at Ottawa, Ontario, on November 17, 2004.

REASONS FOR JUDGMENT BY: DÉCARY J.A.

CONCURRED IN BY: NADON J.A.

MALONE J.A.

Date: 20041117

Docket: A-388-03

Citation: 2004 FCA 387

CORAM: DÉCARY J.A.

NADON J.A.

MALONE J.A.

BETWEEN:

MATHEW ENGLANDER

Appellant

and

TELUS COMMUNICATIONS INC.

Respondent

and

PRIVACY COMMISSIONER OF CANADA

Intervener

REASONS FOR JUDGMENT

DÉCARY J.A.

[1] This appeal raises numerous issues related to the interpretation of the Personal Information Protection and Electronic Documents Act (the Act or PIPED Act), S.C. 2000, c. 5, and pertaining to personal information published in telephone directories. Some of the issues are of a substantial nature: whether fees can be charged to customers who ask that their telephone numbers remain confidential; what type of consent is required by the Act for the listing of first-time customers' personal information in telephone directories; what rules should guide the interpretation of a self-regulatory code transformed into a statute and whether the Canadian Radio-Television and Telecommunications Commission (the CRTC) has exclusive jurisdiction to determine the legality of fees charged for privacy services. Others are of a procedural nature: the requisite standing to apply to the Federal Court for a hearing under section 14 of the Act; the nature of the so-called "hearing"; the deference, if any, owed to the report on a complaint prepared by the Privacy Commissioner of Canada (the Commissioner), Mr. Radwanski, under section 11 and the adjudication of costs to an allegedly public interest litigant.

[2] The relevant facts can be found in the impugned decision of the Federal Court, reported at 2003 FCT 205. Essentially, this matter arose as a result of a complaint filed by the appellant under section 11 of the Act against the respondent (TELUS). The appellant had asked the Commissioner to determine whether the consent allegedly obtained by TELUS from its first-time customers for disclosure of personal information met the standards set up in the Act (the consent issue) and whether TELUS could charge him a monthly fee for the Non-Published Number Service (NPNS) which is a condition for not publishing personal information in its telephone directory (the rate issue).

[3] The Commissioner prepared a report of his findings and dismissed the complaint (A.B. vol. 1, p. 68). His reasons are to say the least laconic.

[4] With respect to the rate issue, he states:

[...] I have concluded that TELUS has the authority to charge its customers $2.00 per month for non-published telephone service and I do not find this an unreasonable practice so as to contravene principle 4.3.3 of the Schedule.

[A.B. vol. 1, p. 70]

[5] With respect to the consent issue, his relevant conclusions can be summarized as follows.

With respect to subsection 5(3) of the Act, he concludes that

[...] a reasonable person would consider TELUS' initiation of service practice and subsequent publishing of customers' personal information in TELUS' White Pages an appropriate collection, use and disclosure of the information.

[ Ibid. ]

With respect to clause 4.3 of Schedule 1, he concludes that

[...]TELUS' practice of initiating service includes obtaining valid consent from its customers to publish their personal information in its publicly available White Pages Directory.

[ Ibid .]

With respect to clause 4.5 of Schedule 1, he concludes that

[...] TELUS obtains valid consent to publish customers' personal information in its White Pages Directory and, by doing so, customers consent to having their personal information available to the public. TELUS only discloses publicly available information as specified by the Act under the Regulations Specifying Publicly Available Information to Dominion Information Services in BC, and TELUS Advertising Services in Alberta, and therefore, is in compliance with the Act .

[ Ibid. ]

[6] These reasons are not very helpful. But since it is not the report but the complaint with which the Court deals in these proceedings (as we shall see), the generality of the report is of little consequence at the end of the day.

[7] The appellant then applied to the Federal Court for a hearing pursuant to section 14 of the Act. The application was dismissed. In his reasons, Mr. Justice Blais found that the hearing was neither an appeal from the Commissioner's report nor an application for judicial review of that report and that he was to exercise his discretion de novo ; that the Commissioner's report was entitled to some deference with respect to decisions clearly within his jurisdiction; that the appellant had standing to raise the consent issue ev...

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