Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] N.R. TBEd. DE.019

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 16, 2011
• Jurisdiction: Canada (Federal)
• Citations: [2011] N.R. TBEd. DE.019;2011 SCC 61

Teachers Assoc. v. Privacy Commr. (SCC) - Administrative law - Tribunal's decision re home statute - Standard of review

MLB being edited

Currently being edited for N.R. - judgment temporarily in rough form.

[French language version follows English language version]

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

Temp. Cite: [2011] N.R. TBEd. DE.019

Information and Privacy Commissioner (appellant) v. Alberta Teachers' Association (respondent) and Attorney General of British Columbia, Information and Privacy Commissioner of British Columbia and B.C. Freedom of Information and Privacy Association (intervenors)

(33620; 2011 SCC 61; 2011 CSC 61)

Indexed As: Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

December 14, 2011.

Summary:

Ten individuals complained to the Information and Privacy Commissioner that the Alberta Teachers' Association (ATA) disclosed, in contravention of the Personal Information Protection Act, their personal information between October 13 and December 2, 2005, by publishing their names and other information about them in a publication called the "ATA News". On October 27, 2005, the Commissioner informed the ATA's privacy officer that it was conducting an investigation. The adjudicator's decision on the complaints was given on March 13, 2008 (17.5 months after the request for an inquiry). The adjudicator found that the ATA had disclosed personal information about the complainants contrary to ss. 7 and 19 of the Act. The ATA applied for judicial review.

The Alberta Court of Queen's Bench allowed the application. The Commissioner appealed.

The Alberta Court of Appeal, Berger, J.A., dissenting, in a decision reported at 474 A.R. 169; 479 W.A.C. 169, dismissed the appeal. The Commissioner appealed.

The Supreme Court of Canada allowed the appeal and reinstated the adjudicator's decision.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - An adjudicator delegated by the Information and Privacy Commissioner found that the Alberta Teachers' Association (ATA) had disclosed certain private information in contravention of the Personal Information Protection Act (PIPA) - The Commissioner’s enabling statute provided that an inquiry "must" be completed within 90 days of the complaint unless the Commissioner extended the period (PIPA, s. 50(5)) - The narrow question was: "Did the inquiry automatically terminate as a result of the Commissioner extending the 90-day period only after the expiry of that period?" - This question involved the interpretation of s. 50(5) - At issue was, inter alia, what was the applicable standard of review - The Supreme Court of Canada held that "[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity" - This principle applied unless the interpretation of the home statute fell into one of the categories of questions to which the correctness standard continued to apply, i.e., "constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator's expertise, ... questions regarding the jurisdictional lines between two or more competing specialized tribunals [and] true questions of jurisdiction or vires" - The timelines question was not a constitutional question; nor was it a question regarding the jurisdictional lines between two or more competing specialized tribunals - It was not a question of central importance to the legal system as a whole, but was one that was specific to the administrative regime for the protection of personal information - Finally, "the timelines question does not fall within the category of a 'true question of jurisdiction or vires'" - The appropriate standard of review was reasonableness - See paragraphs 30 to 33.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - At issue in this application for judicial review was the Information and Privacy Commissioner's interpretation of its enabling statute - The Supreme Court of Canada discussed the issue of jurisdictional questions and the applicable standard of review - See paragraphs 33 to 55 and 78 to 102.

Administrative Law - Topic 3210

Judicial review - General - Jurisdictional issues - [See second Administrative Law - Topic 3202 ].

Administrative Law - Topic 3445.2

Judicial review - General - Practice - Issues not raised before tribunal - An adjudicator delegated by the Information and Privacy Commissioner found that the Alberta Teachers' Association (ATA) had disclosed certain private information in contravention of the Personal Information Protection Act (PIPA) - The Commissioner’s enabling statute provided that an inquiry "must" be completed within 90 days of the complaint unless the Commissioner extended the period (PIPA, s. 50(5)) - The Commissioner took 22 months to conclude the inquiry with respect to the ATA - The issue of statutory timelines was not raised before the Commissioner or the adjudicator - The ATA applied for judicial review of the adjudicator's order, arguing that the Commissioner had lost jurisdiction due to his failure to extend the period for completion of the inquiry within 90 days - The chambers judge granted the ATA's application on this basis, quashing the adjudicator's decision - The decision was upheld by a majority of the Court of Appeal - At issue, inter alia, was whether the court could hear a judicial review of an issue not raised before the tribunal - The Supreme Court of Canada confirmed that a court had the discretion to not consider an issue raised for the first time on judicial review where it would be inappropriate to do so - The Court of Appeal did not err in refusing to disturb the exercise of the reviewing judge's discretion to consider the timelines issue - Here, the decision on the timelines issue was necessarily implied - In this appeal, the court was reviewing the adjudicator's implied decision because hers was the decision under judicial review - See paragraphs 22 to 29.

Trade Regulation - Topic 9422

Protection of personal information and electronic documents - Remedies (incl. complaints, investigation, reports and particular remedies) - Time for - An adjudicator delegated by the Information and Privacy Commissioner found that the Alberta Teachers' Association (ATA) had disclosed certain private information in contravention of the Personal Information Protection Act (PIPA) - The Commissioner’s enabling statute provided that an inquiry "must" be completed within 90 days of the complaint unless the Commissioner extended the period (PIPA, s. 50(5)) - The Commissioner took 22 months to conclude the inquiry with respect to the ATA - The issue of statutory timelines was not raised before the Commissioner or the adjudicator - The ATA applied for judicial review of the adjudicator's order, arguing that the Commissioner had lost jurisdiction due to his failure to extend the period for completion of the inquiry within 90 days - The chambers judge granted the ATA's application on this basis, quashing the adjudicator's decision - The decision was upheld by a majority of the Court of Appeal - The Supreme Court of Canada reinstated the adjudicator's decision on the timelines issue - The Commissioner's reasoning in support of his conclusion that extending the period for completion of an inquiry after the expiry of 90 days did not result in the automatic termination of the inquiry under s. 69(6) of the Freedom of Information and Protection of Privacy Act (FOIPA) satisfied the values of justification, transparency and intelligibility in administrative decision making - The decision was carefully reasoned, systematically addressing: "(i) the text of the provision, (ii) the purposes of FOIPA in general and of s. 69(6), in particular, and (iii) the practical realities of conducting inquiries drawn from the Commissioner's experience administering FOIPA" - It was reasonable for the Commissioner's delegated adjudicator to adopt this detailed reasoning and apply it to s. 50(5) of the PIPA - There existed a reasonable basis for the adjudicator's implied decision in this case that extending the 90-day period after the expiry of that period did not terminate the process - See paragraphs 56 to 72.

Cases Noticed:

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. [paras. 11, 80, 92].

Kellogg Brown and Root Canada v. Information and Privacy Commissioner (Alta.) (2007), 434 A.R. 311; 2007 ABQB 499, refd to. [para. 12].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 22].

Toussaint v. Conseil canadien des relations du travail et al. (1993), 160 N.R. 396 (F.C.A.), refd to. [para. 23].

Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233; 96 N.R. 34 (F.C.A.), refd to. [para. 23].

Shubenacadie Indian Band v. Canadian Human Rights Commission et al., [1998] 2 F.C. 198; 138 F.T.R. 275 (T.D.), refd to. [para. 23].

Legal Oil & Gas Ltd. v. Surface Rights Board (Alta.) (2001), 303 A.R. 8; 273 W.A.C. 8; 2001 ABCA 160, refd to. [para. 23].

United Nurses of Alberta, Local 160 v. Chinook Regional Health Authority (2002), 317 A.R. 385; 284 W.A.C. 385; 2002 ABCA 246, refd to. [para. 23].

Council of Canadians with Disabilities v. VIA Rail Canada Inc. - see Via Rail Canada Inc. v. Canadian Transportation Agency et al.

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 25].

Waters v. Director of Employment Standards (B.C.), [2004] B.C.T.C. 1570; 40 C.L.R.(3d) 84; 2004 BCSC 1570, refd to. [para. 26].

Alberta v. Nilsson (2002), 320 A.R. 88; 288 W.A.C. 88; 2002 ABCA 283, refd to. [para. 26].

A.C. Concrete Forming Ltd. v. Residential Low Rise Forming Contractors Association of Metropolitan Toronto et al., [2009] O.A.C. Uned. 334; 306 D.L.R.(4th) 251; 2009 ONCA 292, refd to. [para. 26].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 30].

Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 2011 SCC 53, refd to. [paras. 30, 83].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [paras. 33, 95].

Syndicat des professeurs du College de Lévis Lauzon et al. v. College d'enseignement general et professional de Lévis-Lauzon, [1985] 1 S.C.R. 596; 59 N.R. 194, refd to. [para. 33].

Union des employés de Commerce, Local 503 v. Roy, [1980] C.A. 394, refd to. [para. 33].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 33].

Nolan v. Kerry (Canada) Inc. - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [paras. 33, 92].

Canada (Attorney General) v. Northrop Grumman Overseas Services Corp. et al., [2009] 3 S.C.R. 309; 395 N.R. 78; 2009 SCC 50, refd to. [paras. 33, 98].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al. (2006), 209 O.A.C. 21 (Div. Ct.), refd to. [para. 37].

Kerry (Canada) Inc. v. DCA Employees Pension Committee - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Nolan et al. v. Superintendent of Financial Services (Ont.) et al. (2007), 225 O.A.C. 163; 86 O.R.(3d) 1; 2007 ONCA 416, refd to. [para. 37].

Alliance Pipeline Ltd. v. Smith (2008), 318 F.T.R. 100; 34 C.E.L.R.(3d) 138; 2008 FC 12, refd to. [para. 37].

Alliance Pipeline Ltd. v. Smith (2009), 389 N.R. 363; 2009 FCA 110, refd to. [para. 37].

Celgene Corp. v. Canada (Attorney General) (2009), 344 F.T.R. 45; 2009 FC 271, refd to. [para. 37].

Celgene Corp. v. Canada (Attorney General) (2009), 398 N.R. 233; 315 D.L.R.(4th) 270; 2009 FCA 378, refd to. [para. 37].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] N.R. TBEd. DE.001; 2011 SCC 59, refd to. [para. 43].

Petro-Canada v. Workers' Compensation Board (B.C.) (2009), 276 B.C.A.C. 135; 468 W.A.C. 135; 2009 BCCA 396, refd to. [para. 54].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [paras. 55, 86].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 54].

Edmonton Police Service, Re; Order F2008-013, [2008] A.I.P.C.D. No. 71, refd to. [para. 61].

Edmonton Police Service, Re; Order F2007-014, [2008] A.I.P.C.D. No. 72, refd to. [para. 61].

Edmonton Police Service, Re; Order F2008-016, [2008] A.I.P.C.D. No. 82, refd to. [para. 61].

Edmonton Police Service, Re; Order F2008-017, [2008] A.I.P.C.D. No. 79, refd to. [para. 61].

Edmonton Police Service, Re; Order F2008-005, [2008] A.I.P.C.D. No. 81, refd to. [para. 61].

Edmonton Police Service, Re; Order F2008-018, [2009] A.I.P.C.D. No. 3, refd to. [para. 61].

Edmonton Police Service, Re; Order F2008-027, [2009] A.I.P.C.D. No. 20, refd to. [para. 61].

British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41; 166 N.R. 81; 44 B.C.A.C. 1; 71 W.A.C. 1, refd to. [para. 74].

Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796 et al., [1970] S.C.R. 425, refd to. [paras. 80, 95].

Bell v. Human Rights Commission (Ont.), [1971] S.C.R. 756, refd to. [paras. 80, 95].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [paras. 81, 97].

Pezim v. Superintendent of Brokers - see Pezim v. British Columbia Securities Commission et al.

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 82].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 85].

Crevier v. Quebec (Attorney General) and Aubry; Crevier v. Quebec (Attorney General), Cofsky and Alberta (Attorney General), [1981] 2 S.C.R. 220; 38 N.R. 541, refd to. [para. 96].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 98].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), generally [para. 85].

Macaulay, Robert W., and Sprague, James L.H., Practice and Procedure Before Administrative Tribunals (2004) (Looseleaf Update 2010, Release 8), vol. 3, pp. 22-126 to 22-126.1 [para. 73].

Mullan, David, Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let's Try Again! (2008), 21 C.J.A.L.P. 117, pp. 126 to 130 [para. 80].

Mullan, David J., The McLachlin Court and the Public Law Standard of Review: A Major Irritant Soothed or a Significant Ongoing Problem?, in Wright, David A., and Dodek, Adam, Public Law at the McLachlin Court: The First Decade (2011), p. 108 [para. 41].

Sopinka, John, and Gelowitz, Mark A., The Conduct of an Appeal (2nd Ed. 2000), pp. 63 to 67 [para. 26].

Wright, David A., and Dodek, Adam, Public Law at the McLachlin Court: The First Decade (2011), p. 108 [para. 41].

Counsel:

Glenn Solomon, Q.C., and Rob W. Armstrong, for the appellant;

Sandra M. Anderson and Anne L.G. Côté, for the respondent;

Written submissions only by David Loukidelis, Q.C., Veronica Jackson and Deanna Billo, for the intervenor, the Attorney General of British Columbia;

Written submissions only by Murray Rankin, Q.C., and Nitya Iyer, for the intervenor, the Information and Privacy Commissioner of British Columbia;

Brent B. Olthuis and Tam C. Boyar, for the intervenor, the B.C. Freedom of Information and Privacy Association.

Solicitors of Record:

Jensen Shawa Solomon Duguid Hawkes, Calgary, Alberta, for the appellant;

Field, Edmonton, Alberta, for the respondent;

Attorney General of British Columbia, Victoria, British Columbia, for the intervenor, the Attorney General of British Columbia;

Heenan Blaikie, Vancouver, British Columbia, for the intervenor, the Information and Privacy Commissioner of British Columbia;

Hunter Litigation Chambers Law Corporation, Vancouver, British Columbia, for the intervenor, the B.C. Freedom of Information and Privacy Association.

This appeal was heard on February 16, 2011, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on December 14, 2011, and included the following opinions:

Rothstein, J. (McLachlin, C.J.C., and Lebel, Fish, Abella and Charron, JJ., concurring) - see paragraphs 1 to 77;

Binnie, J., concurring, (Deschamps, J., concurring) - see paragraphs 78 to 89;

Cromwell, J., concurring - see paragraphs 90 to 104.