Kniss c. Canada (Privacy Commissionner), 2013 FC 31 (2013)

Conférencier:The Honourable Mr. Justice Simon Noël
Numéro de Registre:T-1587-11, T-1588-11
Parties:Kniss c. Canada (Privacy Commissionner)

Federal Court - Kniss v. Canada (Privacy Commissionner)


Federal Court

Cour fédérale

Date: 20130115

Dockets: T-1587-11


Citation: 2013 FC 31

Ottawa , Ontario , January 15, 2013

PRESENT: The Honourable Mr. Justice Simon Noël









[1] This is an application for judicial review of a report of findings of the Office of the Privacy Commissioner of Canada [the “OPC”]. The OPC issued the report on July 12, 2011, after the Applicant, a self-represented litigant, had made a complaint pursuant to section 11 of the Personal Information Protection and Electronic Documents Act , SC 2000, c 5 [“PIPEDA”] against Telus Communications Company [“Telus”]. In a parallel proceeding, the Applicant is applying for judicial review of another report of findings by the OPC, issued on July 14, 2011 after he had filed a complaint against Shepell-FGI [“Shepell”], an employee-assistance provider for Telus. These reasons will address the two separate applications for judicial review as they are both generally based on the same facts, as they raise the same issues. For the following reasons, both judicial review applications are dismissed without costs.

I. Facts

[2] The Applicant, an employee of Telus, was involved in a motor vehicle accident in 1991 that resulted in a chronic back condition. Following the accident, the Applicant had to be assigned to a different task because of his health condition. He assumed the position of contractor/inspector, which was abolished following a strike.

[3] Telus made efforts to find the Applicant a suitable position, and it determined that the position of access technician within the Telus Centre for Excellence could be a suitable position for him. The Applicant was dissatisfied with the proposed position as he believed that sitting at a desk would be detrimental to his health. He preferred his former position that involved driving, an activity that he knew would help to relieve his back pain.

[4] On October 2006, the Applicant commenced consultations with a Shepell counsellor, following a referral for a functional capacity evaluation. After a few sessions, it became apparent to the counsellor that the Applicant was dissatisfied with his newly assigned position at Telus. In November 2006, the Applicant went on disability leave.

[5] On April 16, 2007, the Applicant was advised to report to work at his new position on April 30, 2007. On April 19, 2007, the Applicant contacted the Shepell counsellor. The counsellor alleged that the Applicant was very angry about his work assignment and that his anger escalated during the conversation. She was not able to calm him down. Although the counsellor confirmed that no formal threat was made by the Applicant, she was concerned that the Applicant might represent a risk to himself or to others once in the workplace and therefore contacted her supervisor.

[6] The counsellor, her manager and Shepell’s account executive manager on the Telus account had a discussion on the Applicant and they decided to disclose the counsellor’s concerns regarding the Applicant to Telus. The standard that they used to decide if disclosure was appropriate was the following: “[i]s there a risk of harm to self or others – with a possible escalation to cause harm as a result of an incident?” Indeed, the Statement of Understanding signed on October 4, 2006 by the Applicant includes an exception to the confidentiality of his discussions with a counsellor when a risk to his own person or to others is involved. The information was therefore disclosed to Telus on April 20, 2007, and given to a small group of Telus employees that included the Applicant’s former supervisors.

[7] The Applicant, however, claims that he never signed any consent form authorizing the disclosure of personal information and that he never made any threats.

[8] On April 23, 2007, a meeting was held at Telus to make a Threat Assessment in order to determine if the Applicant’s return to work would involve a risk. Telus decided to ask the Applicant to attend a meeting with Telus Corporate Security. The Applicant refused to attend the meeting, and therefore Telus asked the Applicant by letter on April 30, 2007, to attend an appointment on May 15, 2007, with a psychiatrist. In the letter there was no mention of the fact that a risk assessment would be conducted. On May 7, 2007, the Applicant signed a consent form with respect to the appointment with the psychiatrist and two consent forms authorizing Telus and the psychiatrist to exchange information regarding the Applicant. The Applicant did not attend the appointment with the psychiatrist. Information was also disclosed to his family doctor. The Applicant’s employment was then terminated in July 2007. The Applicant brought the issue to his Union and pursued a grievance under the Canada Labour Code , RSC 1985, c L-2 with respect to his dismissal. The grievance was dismissed in a decision dated July 23, 2009. The arbitrator concluded that the Applicant was properly dismissed because he refused to cooperate with Telus when attempts were made to accommodate him. At the hearing, the Applicant made it known that he had filed for judicial review of his labor arbitration award.

[9] In June 2008, the Applicant filed a complaint with the Office of the Information and Privacy Commissioner of Alberta against both Telus and Shepell. In this complaint, he alleges that the disclosure of personal information by Shepell to Telus occurred without his consent and that the information communicated alleged that he had made threats, when in fact he had not. This complaint was referred to the OPC. The Applicant alleges that Telus did not verify the truthfulness of the information and that it illegally disclosed such information to several employees, his family doctor and a psychiatrist without his consent. The Privacy Commissioner considered both complaints unfounded and therefore dismissed them. The two reports of findings dated July 2011 are the decisions subject to the present judicial review proceedings.

II. Office of the Privacy Commissioner of Canada’s Findings

[10] As for Shepell’s alleged unlawful disclosure of information, the Privacy Commissioner applied Principle 4.3 of Schedule 1 of the PIPEDA when she made her determination. The conclusion of the Privacy Commissioner is that the disclosure of information regarding the Applicant by Shepell to Telus was made in accordance with the Statement of Understanding.

[11] As for Telus’ alleged unlawful disclosure of information to Telus employees and medical practitioners, the Privacy Commissioner concluded that the complaint is unfounded. First, Telus’ disclosure of the Applicant’s personal information was not unlawful as an individual who accepts employment is deemed to have consented to the collection, use and disclosure of personal information for management purposes. Moreover, the exchange of information between Telus and the family doctor was a result of an ongoing relationship between the doctor and the Telus Health Department which began in November 2006. This occurred as a result of an authorization form signed by the Applicant. Disclosure of personal information was made to the psychiatrist pursuant to a consent form signed on May 7, 2007, which was valid until the Applicant's withdrawal of his consent.

III. Applicant’s Submissions

[12] The Applicant claims that he never signed any consent form authorizing Shepell to disclose personal information, and that he never made any threats. He therefore submits that Shepell unlawfully disclosed personal information to Telus, who then unlawfully disclosed his personal information to employees and medical practitioners. The Applicant asks this Court to order that the matter be sent for re-determination by the OPC. He alleges that the investigations were incomplete, and unfair since the information received from both Telus and Shepell was not communicated to him, and that the labour arbitrator's decision was illegally disclosed to the Privacy Commissioner by Telus.

IV. Respondent’s Submissions

[13] The Respondent submits that the Applicant had an adequate alternative remedy under section 14 of the PIPEDA, which the Applicant ought to have pursued. A judicial review should not replace this legislative remedy provided for by the PIPEDA. The Respondent also draws the Court’s attention to the fact that the Applicant had filed considerable new evidence that was not part of the OPC’s certified record. Thus, if the Court decides to exercise its discretion to hear this judicial review application, the Respondent requests an Order ruling the new evidence inadmissible.

[14] The Respondent also submits that the Applicant cannot seek judicial review of the two reports by the OPC because they do not consist of a final decision that can be reviewed under section 18.1 of the Federal Courts Act , RSC 1985, c F-7.

[15] Finally, the Respondent submits that if the Court decides to hear the present judicial review application, all of the Privacy Commissioner ’s findings should be considered reasonable.

V. Issues

[16] I agree with counsel for the Respondent that the issue arising from this application is the following:

Does the Applicant have an adequate alternative remedy such that this Court ought to decline to entertain this application for judicial review ?

[17] Should the Court decide to hear the application for judicial review on its merits, the Court will have to examine two additional issues:

1. Is all of the evidence submitted by the Applicant admissible?

2. Has the Applicant established any grounds for judicial review of the Privacy

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