Collins v. Canada, (2015) 480 N.R. 274 (FCA)

• Judge: Dawson, Ryer and Webb, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: December 10, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 480 N.R. 274 (FCA);2015 FCA 281

Collins v. Can. (2015), 480 N.R. 274 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] N.R. TBEd. DE.016

R. Maxine Collins (appellant) v. Her Majesty the Queen (respondent)

(A-211-14; A-343-13; A-356-13; 2015 FCA 281; 2015 CAF 281)

Indexed As: Collins v. Canada

Federal Court of Appeal

Dawson, Ryer and Webb, JJ.A.

December 10, 2015.

Summary:

Collins was a Canada Revenue Agency (CRA) employee who believed that members of her team inappropriately accessed her personal tax information through the CRA computer system. Following a request under the Privacy Act and an internal investigation, it was determined that only one CRA employee (not on her team) had inappropriately accessed her tax information. That employee was fired. Collins remained unsatisfied, but further complaints did not result in any further findings of unauthorized access. Collins claimed that she was subsequently harassed to the point that she tendered her resignation. Collins sued the federal Crown for misfeasance in public office by various CRA employees and other Crown servants. Collins moved for summary judgment. The Crown moved for a summary trial. Collins moved to have the summary trial motion dismissed as premature. That motion was orally dismissed. Collins also challenged the admissibility of some of the affidavit evidence. That motion was allowed in part and portions of various affidavits were ruled inadmissible.

The Federal Court, in a judgment reported [2014] F.T.R. Uned. 156, dismissed Collins' motion for summary judgment, allowed the motion for a summary trial, and dismissed Collins' action. Collins appealed that decision and the decisions respecting prematurity of the summary trial motion and the admissibility of affidavit evidence. The appeals were consolidated.

The Federal Court of Appeal dismissed the appeals.

Crown - Topic 5145

Officials and employees - Liability of officials in tort - Misfeasance - [See Torts - Topic 9162 ].

Evidence - Topic 1582

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - Collins was a Canada Revenue Agency (CRA) employee who believed that members of her team inappropriately accessed her personal tax information through the CRA computer system - Following a request under the Privacy Act and an internal investigation, it was determined that only one CRA employee (not on her team) had inappropriately accessed her tax information - That employee was fired - Collins remained unsatisfied, but further complaints did not result in any further findings of unauthorized access - Collins claimed that she was subsequently harassed to the point that she tendered her resignation - Collins sued the federal Crown for misfeasance in public office by various CRA employees and other Crown servants - Collins moved for summary judgment - The Crown moved for a summary trial - The trial judge admitted affidavit evidence of the audit trails - The National Audit Trail System automatically created a record of every access made by a CRA employee to a taxpayer's files - Collins claimed that the audit trails were "investigation records" and inadmissible under s. 30(10) of the Canada Evidence Act - The trial judge ruled that the audit trails were "business records" and admissible under s. 30(1) - The Federal Court of Appeal held that this was a factual finding entitled to deference - The trial judge did not err in finding that the audit trails, created automatically and independent of any investigation, were admissible as business records - See paragraphs 48 to 53.

Evidence - Topic 1598.2

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Government records - National Audit Trail System records - [See Evidence - Topic 1582 ].

Practice - Topic 5255.5

Trials - Summary trials - Application - Time for - Collins was a Canada Revenue Agency (CRA) employee who believed that members of her team inappropriately accessed her personal tax information through the CRA computer system - Following a request under the Privacy Act and an internal investigation, it was determined that only one CRA employee (not on her team) had inappropriately accessed her tax information - That employee was fired - Collins remained unsatisfied, but further complaints did not result in any further findings of unauthorized access - Collins claimed that she was subsequently harassed to the point that she tendered her resignation - Collins sued the federal Crown for misfeasance in public office by various CRA employees and other Crown servants - Collins moved for summary judgment - The Crown moved for a summary trial - Collins moved to have the summary trial motion dismissed as premature, arguing that, inter alia, discoveries must take place before a motion for summary trial could proceed - The trial judge rejected the prematurity motion - The Federal Court of Appeal agreed, stating that "it is no precondition to a motion for summary trial under Rule 213(1) of the Federal Court Rules that discoveries must have occurred" - See paragraphs 42 to 47.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - Collins was a Canada Revenue Agency (CRA) employee who believed that members of her team inappropriately accessed her personal tax information through the CRA computer system - Following a request under the Privacy Act and an internal investigation, it was determined that only one CRA employee (not on her team) had inappropriately accessed her tax information - That employee was fired - Collins remained unsatisfied, but further complaints did not result in any further findings of unauthorized access - Collins claimed that she was subsequently harassed to the point that she tendered her resignation - Collins sued the federal Crown for misfeasance in public office by various CRA employees and other Crown servants - The trial judge allowed the Crown's motion for a summary trial and dismissed the action - The trial judge found that there was only one brief unauthorized access by the CRA employee, who did not remember or pass on to anyone else what he saw during that access - The trial judge also found that the CRA employee was unaware that his conduct was likely to harm Collins - There was no evidence that anyone else had unauthorized access - The Federal Court of Appeal held that the trial judge did not err in finding that Collins failed to establish the tort of misfeasance in public office - See paragraphs 83 to 88.

Cases Noticed:

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 32].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 38].

Burns Bog Conservation Society v. Canada (Attorney General) et al. (2014), 464 N.R. 187; 2014 FCA 170, refd to. [para. 38].

Manitoba v. Canada - see Lac Seul Indian Band v. Canada.

Lac Seul Indian Band v. Canada (2015), 470 N.R. 187; 2015 FCA 57, refd to. [para. 38].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 40].

Collins v. Canada (2011), 418 N.R. 23; 2011 FCA 140, refd to. [para. 40].

Collins v. Canada (2011), 418 N.R. 196; 2011 FCA 123, refd to. [para. 40].

Collins v. Canada (2011), 421 N.R. 201; 2011 FCA 171, refd to. [para. 40].

R. v. Youvarajah (Y.), [2013] 2 S.C.R. 720; 447 N.R. 47; 308 O.A.C. 284; 2013 SCC 41, refd to. [para. 49].

Heron Bay Investments Ltd. v. Minister of National Revenue (2010), 405 N.R. 73; 2010 D.T.C. 5126; 2010 FCA 203, refd to. [para. 54].

Pioneer Exploration Inc. (Bankrupt) v. Euro-Am Pacific Enterprises Ltd. et al. (2003), 339 A.R. 165; 312 W.A.C. 165; 2003 ABCA 298, refd to. [para. 70].

Dawson et al. v. Rexcraft Storage and Warehouse Inc. et al. (1998), 111 O.A.C. 201; 164 D.L.R.(4th) 257 (C.A.), refd to. [para. 71].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 30(1) [para. 50]; sect. 30(4) [para. 55]; sect. 30(10)(a)(i) [para. 50].

Counsel:

R. Maxine Collins, on her own behalf;

P. Tamara Sugunasiri and Angela Shen, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

These appeals were heard on November 17, 2015, at Toronto, Ontario, before Dawson, Ryer and Webb, JJ.A., of the Federal Court of Appeal.

On December 10, 2015, Ryer, J.A., delivered the following judgment for the Court of Appeal.