Privacy Commissioner (Can.) v. Canada Labour Relations Board et al., (1996) 118 F.T.R. 1 (TD)

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: June 12, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 118 F.T.R. 1 (TD)

Privacy Commr. v. CLRB (1996), 118 F.T.R. 1 (TD)

MLB headnote and full text

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) v. Canada Labour Relations Board (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)

(T-978-95)

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

Federal Court of Canada

Trial Division

Noël, J.

August 12, 1996.

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, dismissed the application and refused to order that the notes be disclosed.

Administrative Law - Topic 552.1

The hearing and decision - Decisions of the tribunal - Deliberative secrecy - Section 119 of the Canada Labour Code provided that no member of the Canada Labour Relations Board (the CLRB) could be required to give evidence respecting information obtained in the discharge of his or her duties - The Privacy Commissioner sought disclosure of notes made by the members of the Canada Labour Relations Board (the CLRB) at a hearing - The CLRB claimed that ordering disclosure of the notes was to compel the members to "give evidence" within the meaning of s. 119 - The Federal Court of Canada, Trial Division, rejected the argument - See paragraphs 78 to 86.

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 (the CLRB) at a hearing - The CLRB claimed that the notes were exempt from disclosure under s. 22(1)(b) of the Privacy Act - The Federal Court of Canada, Trial Division, discussed the application of the principles of judicial independence to administrative tribunals - The court held that the disclosure of the notes would compromise the CLRB's operations by revealing the mental processes and ultimately the decision-making processes of its members - The court held that the notes were exempt from disclosure because such disclosure could reasonably be expected to be injurious to the enforcement of the Canada Labour Code - See paragraphs 59 to 77.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal - Bias - Institutional or systematic bias - Independence - The Federal Court of Canada, Trial Division, stated that the principles of judicial independence were "imported into the sphere of administrative decision-making through the enforcement by the courts of the rules of natural justice" - Courts had to ensure that administrative tribunals made their decisions in accordance with the rules of natural justice - Therefore, "the court must ensure that the tribunal possesses the freedom to decide matters independently, as it sees fit, without interference from anyone at any time. ... regulated and systematic intrusions by outsiders into the thought process of a decision maker ... would impact negatively on the integrity of the decision-making process" - See paragraphs 72 to 74.

Administrative Law - Topic 2093

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

Courts - Topic 313

Judges - Independence of judiciary - Judicial immunity - The Federal Court of Canada, Trial Division, stated that "notes taken by a judge in the course of a hearing are within the heartland of the adjudicative privilege as they stand to reveal the judge's mental processes in arriving at a decision over and beyond what is revealed by the reasons given for the decision. ... judges must be in a position to take notes free from any intrusion and in particular, free from the fear that the notes could thereafter be subject to disclosure for purposes other than that for which they were intended. A judge must have total freedom as to what is and what is not noteworthy and the certainty that no one can thereafter put in question his or her wisdom in this regard. To allow hearing notes to be used by others for purposes other than that for which they were intended would fundamentally impede the use of a tool that is essential to the judiciary ..." - See paragraph 65.

Crown - Topic 7110

Examination of public documents - General - "Record under control of government" defined - The Privacy Commissioner sought disclosure of notes made by the members of the Canada Labour Relations Board (the CLRB) 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 CLRB and were not contained in any record keeping system over which the CLRB had administrative control - The Federal Court of Canada, Trial Division, held that the notes were not "under the control" of the CLRB for the purposes of s. 12(1)(b) of the Privacy Act - See paragraphs 95 to 111.

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - The Access to Information Act exempted from disclosure a record that contained, inter alia, "accounts of consultations or deliberations" (s. 21) - No such exception existed under the Privacy Act (the Act) - The Privacy Commissioner sought disclosure of notes made by the members of the Canada Labour Relations Board at a hearing - The Commissioner claimed that the absence of an exemption for "accounts of consultations or deliberations" in the Act implied that adjudicative privilege was not intended to guard information from disclosure under the Act - The Federal Court of Canada, Trial Division, rejected the argument - The court opined that it was doubtful that consultations and deliberations contained "personal information" as defined by the Act - See paragraphs 87 to 94.

Crown - Topic 7211

Examination of public documents - Freedom of information - Bars - Consultations or deliberations by government officials - [See Crown - Topic 7170 ].

Crown - Topic 7220.04

Examination of public documents - Freedom of information - Bars - Reasonable expectation of probable harm - The Privacy Commissioner sought disclosure of notes made by the members of the Canada Labour Relations Board (the CLRB) at a hearing - The CLRB refused to release the notes, claiming that requiring such disclosure "could reasonably be expected to be injurious to the enforcement of any law in Canada" (Privacy Act, s. 22(1)(b)) - The Federal Court of Canada, Trial Division, stated that the onus was on the CLRB to establish that disclosure of the notes would be injurious to the enforcement of the Canada Labour Code - The CLRB had to provide the court with an explanation of how or why the harm alleged might result from disclosure - See paragraphs 48 to 49.

Crown - Topic 7220.04

Examination of public documents - Freedom of information - Bars - Reasonable expectation of probable harm - [See Administrative Law - Topic 605 ].

Labour Law - Topic 809

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

Words and Phrases

Control - The Federal Court of Canada, Trial Division, discussed the meaning of the word "control" in the phrase "under the control of a government institution" in s. 12(1)(b) of the Privacy Act, R.S.C. 1985, c. P-21 - See paragraphs 95 to 111.

Words and Phrases

Personal information - The Federal Court of Canada, Trial Division, discussed the meaning of the phrase "personal information" as defined in the Privacy Act, R.S.C. 1985, c. P-21 - See paragraphs 87 to 94.

Words and Phrases

Under the control of a government institution - The Federal Court of Canada, Trial Division, discussed the meaning of the phrase "under the control of a government institution" in s. 12(1)(b) of the Privacy Act, R.S.C. 1985, c. P-21 - See paragraphs 95 to 111.

Cases Noticed:

Canadian Football League v. Canada (Minister of Fitness and Amateur Sports) and Shoalts, [1989] 2 F.C. 480; 24 F.T.R. 62 (T.D.), refd to. [para. 17].

Ottawa Football Club v. Canada - see Canadian Football League v. Canada (Minister of Fitness & Amateur Sports) and Shoalts.

Montana Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1989] 1 F.C. 143; 18 F.T.R. 15 (T.D.), refd to. [para. 17].

Canada Post Corp. v. Canada (Minister of Public Works) et al., [1995] 2 F.C. 110; 179 N.R. 350 (F.C.A.), refd to. [paras. 17, 41].

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. [paras. 25, 63, footnote 14].

MacKeigan v. Hickman - see MacKeigan, J.A. et al. v. Royal Commission (Marshall Inquiry).

Rubin v. Canada Mortgage and Housing Corp. (President), [1989] 1 F.C. 265; 86 N.R. 186 (F.C.A.), refd to. [para. 42].

Dagg v. Canada (Minister of Finance) (1995), 181 N.R. 139 (F.C.A.), refd to. [para. 43].

Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551; 20 F.T.R. 314 (T.D.), refd to. [para. 43].

Sutherland v. Canada (Minister of Indian and Northern Affairs), [1994] 3 F.C. 527; 77 F.T.R. 241 (T.D.), refd to. [para. 43].

Bombadier v. Commission de la Fonction Publique du Canada (1990), 41 F.T.R. 39 (T.D.), refd to. [para. 45].

Canada Packers Inc. v. Canada (Minister of Agriculture) et al., [1989] 1 F.C. 47; 87 N.R. 81 (F.C.A.), refd to. [para. 48].

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [para. 57].

Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244; 35 Admin. L.R. 153, refd to. [para. 58, footnote 22].

Union des employés de services, local 298 v. Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298.

U.E.S. - see Union des employées de service.

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79; 23 C.C.C.(3d) 193; 24 D.L.R.(4th) 161, refd to. [para. 60].

Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1; 30 D.L.R.(4th) 481, refd to. [para. 61].

Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241; 64 C.C.C.(3d) 513, refd to. [para. 62].

R. v. Lippé - see Lippé et autres v. Quèbec (Procureur général) et autres.

Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; 177 N.R. 325; 122 D.L.R.(4th) 129, refd to. [para. 68].

Tremblay v. Commission des affaires sociales et autres, [1992] 1 S.C.R. 952; 136 N.R. 5; 47 Q.A.C. 169, refd to. [para. 71].

Crevier v. Quebec (Attorney General), [1981] 2 S.C.R. 220; 38 N.R. 541, refd to. [para. 74, footnote 24].

Agnew v. Ontario Association of Architects (1987), 26 O.A.C. 354; 64 O.R.(2d) 8 (Div. Ct.), refd to. [para. 79].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) (1994), 68 O.A.C. 216; 110 D.L.R.(4th) 731 (Div. Ct.), refd to. [para. 82].

Statutes Noticed:

Access to Information Act, R.S.C. 1985, c. A-1, sect. 2, sect. 3, sect. 4 [para. 27]; sect. 7, sect. 10 [para. 29]; sect. 16(1)(c), sect. 19 [para. 28]; sect. 20(1)(c), sect. 20(1)(d) [para. 48]; sect. 21 [para. 28]; sect. 30, sect. 37, sect. 41, sect. 42, sect. 54 [para. 30]; sect. 70, sect. 72 [para. 31].

Canada Labour Code - see Labour Code.

Canadian Bill of Rights, R.S.C. 1985, App. III, sect. 2(e), sect. 2(f) [para. 76].

Canadian Human Rights Act, S.C. 1976-77, c. 33, sect. 2(b) [para. 32].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18.1 [para. 72]; sect. 18.1(4) [para. 56, footnote 20]; sect. 28 [para. 72].

Labour Code, R.S.C. 1985, c. L-2, sect. 15, sect. 16, sect. 18 [para. 56]; sect. 22 [paras. 15, 56]; sect. 37 [para. 2, footnote 2]; sect. 97(1) [para. 2, footnote 1]; sect. 98(1), sect. 99 [para. 57, footnote 21]; sect. 119 [para. 78].

Privacy Act, R.S.C. 1985, c. P-21, sect. 2 [para. 32]; sect. 3 [para. 34]; sect. 3(b), sect. 3(e), sect. 3(g), sect. 3(i) [para. 14]; sect. 6 [paras. 36, 77]; sect. 7, sect. 8 [para. 37]; sect. 10 [para. 34]; sect. 12 [paras. 6, 33]; sect. 12(1)(b) [para. 18]; sect. 18 [para. 38]; sect. 22(1)(b) [paras. 22, 38, 48]; sect. 29 [para. 39]; sect. 33(1), sect. 33(2) [para. 5, footnote 5]; sect. 35 [para. 39]; sect. 35(1) [para. 9]; sect. 37(1) [para. 40]; sect. 41 [para. 39]; sect. 42 [paras. 1, 9, 39]; sect. 53 [para. 39].

Privacy Act (Can.), Privacy Regulations, SOR/83-508, sect. 4 [para. 77]; sect. 4(1) [para. 36].

Authors and Works Noticed:

Dictionary of Canadian Law (2nd Ed. 1990) [para. 109].

Shetreet, S., and Deschênes, J., Judicial Independence: The Contemporary Debate (1985), p. 450 [para. 62].

Webster's New World Dictionary of the American Language (2nd. College Ed. 1985) [para. 90, footnote 33].

Counsel:

Timothy D. Ray, for the applicant;

Holly Harris & Martine Nantel, for the Privacy Commissioner;

Bernard Chernos, Robert Watson & Maryse Tremblay, for the respondent;

David Scott, Peter Annis & Martine Richard, for the intervenor, Public Service Staff Relations Board;

Randal Hofley, for the intervenor, Canadian Human Rights Tribunal;

Joel Robichaud, for the intervenor, Canadian International Trade Tribunal;

Alix Jenkins, for the intervenor, National Transportation Agency of Canada.

Solicitors of Record:

Beament Green, Toronto, Ontario, for the applicant;

Privacy Commissioner of Canada, Ottawa, Ontario, for the Privacy Commissioner of Canada;

Chernos, Conway, Toronto, Ontario, for the respondent;

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

Stikman Elliott, Ottawa, Ontario, for the intervenor, Canadian Human Rights Tribunal;

Canadian International Trade Tribunal, Ottawa, Ontario, for the intervenor, Canadian International Trade Tribunal;

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

This application was heard in Ottawa, Ontario, on June 12, 1996, by Noël, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on August 12, 1996.