Love v. Privacy Commissioner (Can.), (2015) 475 N.R. 390 (FCA)

• Judge: Stratas, Rennie and Gleason, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 08, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 475 N.R. 390 (FCA);2015 FCA 198

Love v. Privacy Commr. (2015), 475 N.R. 390 (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. SE.010

Steven Love (appellant) v. Office of the Privacy Commissioner of Canada (respondent)

(A-356-14; 2015 FCA 198; 2015 CAF 198)

Indexed As: Love v. Privacy Commissioner (Can.)

Federal Court of Appeal

Stratas, Rennie and Gleason, JJ.A.

September 17, 2015.

Summary:

The applicant filed a complaint with the Office of the Privacy Commissioner of Canada (OPC), alleging that Citizenship and Immigration Canada had violated his privacy rights. The applicant subsequently filed a complaint with the Canadian Human Rights Commission, alleging that the OPC failed to properly investigate and rule on his complaints because of his sexual orientation and his disability. The Commission decided not to deal with the complaint on the basis that it was trivial, frivolous, vexatious or made in bad faith (Canadian Human Rights Act, s. 41(1)(d)). The applicant applied for judicial review.

The Federal Court, in a decision reported at (2014), 459 F.T.R. 11, dismissed the application. The applicant appealed.

The Federal Court of Appeal dismissed the appeal.

Administrative Law - Topic 2100

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Practice and remedies - The Canadian Human Rights Commission decided not to deal with a discrimination complaint filed by Love - Love applied for judicial review and argued that the Commission investigator was biased - The application judge dismissed the application - The Federal Court of Appeal dismissed Love's appeal - There was no evidence before the court respecting the bias allegations - In any event, Love failed to raise this issue with the Commission investigator - This vitiated any potential claim for bias - It was well-settled that allegations of this nature had to be made before the administrative decision-maker and could not be raised for the first time on judicial review - See paragraph 27.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - The Canadian Human Rights Commission decided not to deal with a discrimination complaint filed by Love - Love applied for judicial review and sought to file affidavit evidence that was not before the Commission when it made its decision - The application judge held that the evidence was inadmissible and dismissed the application - The Federal Court of Appeal dismissed Love's appeal - In general, a judicial review application had to be determined based on the record that was before the administrative decision-maker - Love failed to establish that his evidence fell under any of the recognized exceptions to this rule - The application judge did not err in excluding it - In any event, the point was moot because the application judge held that even if the evidence had been inadmissible, it was irrelevant and would not have affected his decision - See paragraphs 17 and 18.

Administrative Law - Topic 3345.2

Judicial review - General - Practice - Issues not raised before tribunal - [See Administrative Law - Topic 2100 ].

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - [See Civil Rights - Topic 7080 ].

Civil Rights - Topic 912

Discrimination - General principles - Complaints - General - [See Civil Rights - Topic 7080 ].

Civil Rights - Topic 7070.1

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Complaints - Bars - [See Civil Rights - Topic 7080 ].

Civil Rights - Topic 7080

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Pre- investigation decision not to deal with complaint - Love filed a complaint with the Canadian Human Rights Commission, alleging that the Office of the Privacy Commissioner of Canada (OPC) failed to properly investigate and rule on his complaints because of his sexual orientation and disability - Love alleged that an OPC investigator referred to his partner as "your whatever" - Love's file was then reassigned to a different investigator - The Commission decided not to deal with the complaint on the ground that it was frivolous - Love's application for judicial review was dismissed - The Federal Court of Appeal dismissed Love's appeal - The Commission applied well-settled human rights principles to the effect that a complaint might be dismissed for frivolousness under s. 41(1)(d) of the Canadian Human Rights Act if it failed to set out a reasonable or prima facie basis for the allegation of discrimination - Where a complainant failed to assert a link between the conduct complained of and a prohibited ground of discrimination, the Commission could reasonably conclude that it was plain and obvious that a complaint could not succeed - It was reasonable for the Commission to conclude that Love failed to set out any material facts in support of such a link - The derogatory comment made by the OPC investigator early on in the investigation could not constitute discriminatory conduct by the OPC - See paragraphs 19 to 26.

Cases Noticed:

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 10].

Herbert v. Canada (Attorney General), [2008] F.T.R. Uned. 696; 169 A.C.W.S.(3d) 393; 2008 FC 969, refd to. [para. 10].

D'Angelo v. Canada (Attorney General) et al., [2014] F.T.R. Uned. 452; 2014 FC 1120, refd to. [para. 10].

Association of Universities and Colleges of Canada et al. v. Canadian Copyright Licensing Agency (2012), 428 N.R. 297; 2012 FCA 22, refd to. [para. 17].

International Relief Fund for the Afflicted and Needy (Canada) v. Minister of National Revenue (2013), 449 N.R. 95; 2013 D.T.C. 5161; 2013 FCA 178, refd to. [para. 17].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 19].

Bergeron v. Canada (Attorney General) (2015), 474 N.R. 366; 255 A.C.W.S.(3d) 955; 2015 FCA 160, refd to. [para. 20].

Hagos et al. v. Canada (Attorney General), [2015] N.R. Uned. 52; 2015 FCA 83, refd to. [para. 20].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 22].

Canada Post Corp. v. Canadian Human Rights Commission et al. (1997), 130 F.T.R. 241; 71 A.C.W.S.(3d) 935 (T.D.), affd. (1999), 245 N.R. 397 (F.C.A.), refd to. [para. 23].

Public Service Alliance of Canada v. Canada (Attorney General) et al. (2015), 475 N.R. 232; 2015 FCA 174, refd to. [para. 23].

McIlvenna v. Bank of Nova Scotia (2014), 466 N.R. 195; 2014 FCA 203, refd to. [para. 24].

Canada (Attorney General) v. Maracle et al. (2012), 404 F.T.R. 173; 2012 FC 105, refd to. [para. 24].

Hartjes v. Canada (Attorney General) (2008), 334 F.T.R. 277; 2008 FC 830, refd to. [para. 24].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 27].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2015) (Looseleaf), p. 11:5500 [para. 27].

Counsel:

Steven Love appeared on his own behalf;

Regan Morris, for the respondent.

Solicitors of Record:

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

This appeal was heard at Toronto, Ontario, on September 8, 2015, before Stratas, Rennie and Gleason, JJ.A., of the Federal Court of Appeal. Gleason, J.A., delivered the following judgment for the court at Ottawa, Ontario, on September 17, 2015.