Privacy Commissioner (Can.) v. Canada Labour Relations Board et al., (2000) 257 N.R. 66 (FCA)

• Judge: Desjardins, Rothstein and Evans, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 09, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 257 N.R. 66 (FCA)

Privacy Commr. v. CLRB (2000), 257 N.R. 66 (FCA)

MLB headnote and full text

Temp. Cite: [2000] N.R. TBEd. JN.007

In The Matter Of an application pursuant to Section 42 of the Privacy Act, R.S.C. 1985, c. P-21 (the "Act") for review to the Federal Court of Canada of the refusal by the Privacy Coordinator of Canada Labour Relations Board to disclose records requested by the Privacy Commissioner of Canada under the Act.

Privacy Commissioner of Canada (applicant/appellant) v. Canada Labour Relations Board (respondent/respondent) and the Public Service Staff Relations Board, The Human Rights Tribunal, The Canadian International Trade Tribunal and the National Transportation Agency of Canada (intervenors)

(A-685-96)

Indexed As: Privacy Commissioner (Can.) v. Canada Labour Relations Board et al.

Federal Court of Appeal

Desjardins, Rothstein and Evans, JJ.A.

May 9, 2000.

Summary:

Charlebois was dismissed by his employer. The membership of his union voted not to refer his grievances to arbitration. Charlebois filed a complaint with the Canada Labour Relations Board (the CLRB), alleging that the union failed to fairly represent him and therefore violated s. 37 of the Canada Labour Code. The CLRB dismissed Charlebois' complaint. The CLRB's decision was upheld by the Federal Court of Appeal (see (1994), 169 N.R. 144 (F.C.A.), leave to appeal denied (1995), 185 N.R. 157 (S.C.C.)). Charlebois sought disclosure of, inter alia, the notes made by the CLRB members at the hearing. The CLRB refused to release the members' notes. The Privacy Commissioner applied, on Charlebois' be­half, for a review of the CLRB's decision under s. 42 of the Privacy Act.

The Federal Court of Canada, Trial Di­vision, in a decision reported 118 F.T.R. 1, dismissed the application and refused to order that the notes be disclosed. The Pri­vacy Commissioner appealed.

The Federal Court of Appeal dismissed the appeal.

Administrative Law - Topic 605

The hearing and decision - Disclosure by tribunal - Of notes of tribunal members - The Privacy Commissioner sought dis­closure of notes made by the members of the Canada Labour Relations Board at a hearing - The members were not required to take notes and believed that the notes were their own - The notes were not part of the official records of the Board and were not contained in any record keeping system over which the Board had adminis­trative control - The Federal Court of Appeal affirmed that the notes were not "under the control" of the Board for the purposes of s. 12(1)(b) of the Privacy Act - "The principle of judicial independence and its corollary, the principle of adjudi­cative privilege, as applied to ad­ministra­tive tribunals, lie at the heart of the Board's lack of control over the notes as a government institution."

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal - Bias - Institutional or system­atic bias - Independence - [See Adminis­trative Law - Topic 605 ].

Crown - Topic 7110

Examination of public documents - Gen­eral - "Record under control of govern­ment" defined - [See Administrative Law - Topic 605 ].

Labour Law - Topic 809

Labour relations boards and judicial review - Procedure - Disclosure - Notes - [See Administrative Law - Topic 605 ].

Cases Noticed:

MacKeigan, J.A. et al. v. Royal Commis­sion (Marshall Inquiry), [1989] 2 S.C.R. 796; 100 N.R. 81; 94 N.S.R.(2d) 1; 247 A.P.R. 1; 61 D.L.R.(4th) 688, refd to. [para. 2, footnote 5].

Statutes Noticed:

Canada Labour Code - see Labour Code.

Labour Code, R.S.C. 1985, c. L-2, sect. 15(a), sect. 15(b) [para. 7].

Privacy Act, R.S.C. 1985, c. P-21, sect. 12(1)(b) [para. 3].

Counsel:

Marvin J. Huberman and Roger Townshend, for the appellant;

Robert Watson and Susan Nicholas, for the respondent;

Alain Préfontaine, for the intervenor, At­torney General of Canada;

David Scott and Martine Richard, for the intervenor, Public Service Staff Relations Board;

Randall J. Hofley, for the intervenor, Human Rights Tribunal;

Shelly Appleby-Ostroff, for the intervenor, National Transportation Agency of Cana­da.

Solicitors of Record:

Lafleur Brown, Toronto, Ontario, for the appellant;

Canadian Labour Relations Board, Toronto, Ontario, for the respondent;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;

Scott & Aylen, Ottawa, Ontario, for the intervenor, Public Service Staff Relations Board;

Stikeman, Elliott, Ottawa, Ontario, for the intervenor, Human Rights Tribunal;

National Transportation Agency of Canada, Hull, Quebec, for the National Transpor­tation Agency of Canada.

This appeal was heard at Ottawa, Ontario, on May 9, 2000, by Desjardins, Rothstein and Evans, JJ.A., of the Federal Court of Appeal. On May 9, 2000, Desjardins, J.A., delivered the following oral judgment.