Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.), 2011 ABQB 19

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 12, 2011
• Citations: 2011 ABQB 19;(2011), 509 A.R. 92 (QB)

Teachers Assoc. v. Privacy Commr. (2011), 509 A.R. 92 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JA.081

The Alberta Teachers' Association (applicant) v. Information and Privacy Commissioner (respondent)

(1003 09672; 2011 ABQB 19)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

January 12, 2011.

Summary:

A teacher complained that the Alberta Teacher's Association (ATA) had breached her privacy rights. The Information and Privacy Commissioner decided to hold a hearing respecting the complaint. The ATA objected, arguing that the proceedings did not follow the mandatory timeline and the Commissioner had no power to continue the inquiry. The Commissioner decided to proceed. The ATA applied to quash the Commissioner's decision to proceed with the hearing and to prohibit the Commissioner from proceeding on the basis of there being a reasonable apprehension of bias.

The Alberta Court of Queen's Bench allowed the ATA's application and quashed the Commissioner's decision. The court also issued an order prohibiting the Commissioner from any further involvement in the teacher's complaints except for the exercise of his power to delegate his functions to others. The court remitted the matter to the Commissioner to appoint a delegate to deal with the complaint (i.e., to make a fresh determination as to whether the complaint should proceed to an inquiry).

Administrative Law - Topic 233

The hearing and decision - Right to be heard - Pre-hearing submissions (incl. submissions on whether hearing should be held) - A teacher complained that the Alberta Teacher's Association (ATA) had breached her privacy rights (Personal Information and Privacy Act (PIPA)) - The Information and Privacy Commissioner decided to hold a hearing - The ATA applied for judicial review of a decision to proceed with the hearing - The ATA argued that it had reasonable expectations that the Commissioner would request submissions before decisions were made and in failing to do so, the Commissioner failed to follow due process - Further, the Commissioner's practice of requiring the parties to manage the exchange submissions breached the audi alteram partem principle - The Alberta Court of Queen's Bench rejected the ATA's submissions - Neither the PIPA nor the rules of natural justice required the Commissioner to entertain submissions before deciding whether to hold a hearing - There was no general obligation on the Commissioner to give the parties an opportunity to make submissions before the hearing itself - See paragraphs 97 to 107.

Administrative Law - Topic 548

The hearing and decision - Decisions of the tribunal - Reasons for decision - When not required - A teacher complained that the Alberta Teacher's Association (ATA) had breached her privacy rights (Personal Information and Privacy Act) - The Information and Privacy Commissioner decided to hold a hearing without giving written reasons - The ATA applied for judicial review of a decision to proceed with the hearing - The ATA argued that it had reasonable expectations that it would be allowed to make submissions before any decisions were made and any decisions would be in writing - The Alberta Court of Queen's Bench agreed with the Commissioner's submissions in this regard (and his practice) - That practice being that if the Commissioner decided to not hold a hearing, he gave reasons - If he decided to hold a hearing, he gave no reasons for that decision - The former was a final decision, with a significant impact on the parties's positions - The latter was an interim decision, with no impact on the parties's privacy concerns - The court stated that it did not see that reasons were generally required to be given respecting a decision to hold a hearing, absent special circumstances - There was no breach of natural justice in regard to the ATA's reasonable expectations - See paragraphs 86 to 96.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - A teacher complained that the Alberta Teacher's Association (ATA) had breached her privacy rights (Personal Information and Privacy Act (PIPA)) - The Information and Privacy Commissioner decided to hold a hearing - The ATA objected to the matter proceeding as it was outside the mandatory timeline as discussed in ATA v. Info. and Privacy Commissioner (ABCA 2010) - The Commissioner issued a decision dealing with the ATA's objections, including criticisms of the ATA for pursuing an objection based on passage of time - The Commissioner had also issued a news release commenting unfavourably of the 2010 ATA decision - The ATA applied for judicial review of the decision to proceed with the hearing, alleging an apprehension of bias - The Alberta Court of Queen's Bench found that there was a reasonable apprehension of bias which constituted an exceptional circumstance warranting allowing judicial review of the Commissioner's interlocutory decision to hold the hearing - The court quashed the Commissioner's decision and remitted the matter to the Commissioner to appoint a delegate to deal with the complaint - See paragraphs 131 to 175.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See Administrative Law - Topic 548 ].

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - A teacher complained that the Alberta Teacher's Association (ATA) had breached her privacy rights - The Information and Privacy Commissioner decided to hold a hearing respecting the complaint - The ATA applied for judicial review of a decision to proceed with the hearing, alleging an apprehension of bias - The Alberta Court of Queen's Bench held that the standard of review on issues of natural justice and procedural fairness was correctness and for other matters the standard was reasonableness - The court stated that the Commissioner's decisions on matters relating to the interpretation of the Personal Information Protection Act and the Freedom of Information and Protection of Privacy Act related to his "home" statutes, and should be reviewed on the reasonableness standard as opposed to the correctness standard, and the Commissioner was entitled to a high degree of deference - See paragraphs 66 to 70.

Administrative Law - Topic 3303

Judicial review - General - Bars - Appeal or review available - A teacher complained that the Alberta Teacher's Association (ATA) had breached her privacy rights (Personal Information and Privacy Act) - The Information and Privacy Commissioner decided to hold a hearing - The ATA applied for judicial review of a decision to proceed with the hearing - As a preliminary matter, the Commissioner objected to much of the ATA's application on the basis that the ATA was seeking a determination of issues that were not before the Commissioner - The Alberta Court of Queen's Bench opined that on judicial review the courts should exercise restraint before intervening on matters within the jurisdiction of the tribunal that had not yet been dealt with by the tribunal - In this case the court identified several issues that were argued before it, that should have been dealt with in first instance by the Commissioner - See paragraphs 71 to 81.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - A teacher complained that the Alberta Teacher's Association (ATA) had breached her privacy rights - The Information and Privacy Commissioner decided to proceed with a hearing (the decision) - The ATA applied for judicial review of the decision, seeking certiorari, prohibition and mandamus, and filed two supporting affidavits - The Commissioner applied to strike portions of the affidavits because they contained hearsay (rule 305(1)) - The ATA argued that hearsay was permitted on interlocutory applications (rule 305(3)) - The Alberta Court of Queen's Bench, having regard to the remedies sought, did not consider the application to be wholly interlocutory - Hearsay was inappropriate on the issues of prohibition and mandamus as the relief sought was final - However, the certiorari aspect of the matter could be interlocutory depending on the appropriate remedy (e.g., remittal or rehearing) - Therefore, properly sourced hearsay would be considered on the certiorari application, but might be given different weight than statements within the deponent's knowledge - See paragraphs 36 to 58.

Administrative Law - Topic 3503

Judicial review - Mandamus - General - When available - The Alberta Teacher's Association (ATA) sought mandamus to have a quashed decision either removed from the Information and Privacy Commissioner's web site or have a note inserted that it was quashed - The Alberta Court of Queen's Bench refused to grant mandamus - The court stated that "There is no public legal duty for the Commissioner to have a website. Subject to defamation laws and contempt of court laws, the contents of the website are likely Charter-protected freedom of speech. The courts should not be directing how someone exercises that right barring exceptional circumstances. The ATA has not established that they are owed any particular duty with respect to the Commissioner's website, let alone that there is a clear right to performance of any duty relating to the contents of the website ..." - See paragraphs 161 to 168.

Administrative Law - Topic 3553

Judicial review - Mandamus - Conditions precedent - Existence of duty - [See Administrative Law - Topic 3503 ].

Administrative Law - Topic 3751

Judicial review - Mandamus - Mandamus to public officials and boards - General - [See Administrative Law - Topic 3503 ].

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - A teacher complained that the Alberta Teacher's Association (ATA) had breached her privacy rights (Personal Information and Privacy Act (PIPA)) when mail containing personal information was misdirected - The Information and Privacy Commissioner decided to hold a hearing respecting the complaint - The ATA applied for judicial review of the decision to proceed with the hearing, arguing that the Commissioner fettered his discretion to screen complaints pursuant to ss. 36(2)(e), 49 and 50(1) of PIPA by automatically referring an unresolved complaint to a hearing, by directing that a de minimus complaint be referred to a hearing, and by directing a hearing into a complaint raised outside the timeline for requesting a review pursuant to s. 47(2) of PIPA - The Alberta Court of Queen's Bench held that there was no evidence that the Commissioner fettered his discretion on any of those bases - See paragraphs 112 to 130.

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status of a board to appear before the courts when its decisions are under judicial review - A teacher complained that the Alberta Teacher's Association (ATA) had breached her privacy rights (Personal Information and Privacy Act) - The Information and Privacy Commissioner decided to hold a hearing respecting the complaint - The ATA applied for judicial review of a decision to proceed with the hearing, and filed two affidavits in support of the application - The Commissioner applied to strike portions of the affidavits as being improper and inadmissible on judicial review - The ATA argued that the Commissioner lacked standing to challenge the affidavits - The Alberta Court of Queen's Bench rejected the ATA's argument, holding that the Commissioner had status to make submissions as to the contents of the ATA's affidavits, as well as to make submissions as to the ATA's arguments other than submissions as to the correctness or reasonableness of the decision - See paragraphs 25 to 35.

Telecommunications - Topic 3550

Internet (World Wide Web) - Internet service providers and site operators - General - Request that material be expunged or modified - The Alberta Court of Queen's Bench, when asked to order the Information and Privacy Commissioner to remove or modify material on its web site, stated that: "The demand by the ATA [Alberta Teacher's Association] for changes to the Commissioner's website - that decisions be noted up in some fashion in the event of judicial review - may be a useful suggestion, but it is up to the Commissioner to decide the content. As to the demand that the Decision be expunged, there is no basis in law to require that a written decision of a statutory or quasi-judicial tribunal be expunged from a website or any other means of publication because one of the parties finds the contents objectionable. Defamation and contempt have not been raised and need not be considered here" - See paragraphs 166 and 167.

Telecommunications - Topic 3550

Internet (World Wide Web) - Internet service providers and site operators - General - Request that material on website be expunged or modified - [See Administrative Law - Topic 3503 ].

Trade Regulation - Topic 9422

Protection of personal information and electronic documents - Remedies (incl. complaints, investigation, reports and particular remedies) - Time for - [See Administrative Law - Topic 3303 ].

Trade Regulation - Topic 9427

Protection of personal information and electronic documents - Remedies (incl. complaints, investigation, hearings, reports and particular remedies) - Hearing - General - [See Administrative Law - Topic 233 , Administrative Law - Topic 548 , Administrative Law - Topic 2088 and Administrative Law - Topic 8843 ].

Trade Regulation - Topic 9429

Protection of personal information and electronic documents - Remedies (incl. complaints, investigation, hearings, reports and particular remedies) - Judicial review and appeals (incl. standing and scope of review) - [See Administrative Law - Topic 3202 , Administrative Law - Topic 3345 and Administrative Law - Topic 8843 ].

Trade Regulation - Topic 9430

Protection of personal information and electronic documents - Remedies (incl. complaints, investigation, hearings, reports and particular remedies) - Procedural fairness (incl. duty to give reasons, bias, etc.) - [See Administrative Law - Topic 233 , Administrative Law - Topic 548 , Administrative Law - Topic 3503 and Administrative Law - Topic 8264 ].

Cases Noticed:

Alberta Teachers' Association v. Information and Privacy Commissioner (2010), 474 A.R. 169; 479 W.A.C. 169; 2010 ABCA 26, refd to. [para. 13].

Brewer v. Fraser Milner Casgrain LLP et al. (2008), 432 A.R. 188; 424 W.A.C. 188; 2008 ABCA 160, refd to. [para. 25].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, refd to. [para. 25].

O'Malley v. Board of Education of Calgary Roman Catholic Separate School District No. 1 (2006), 398 A.R. 74; 2006 ABQB 126, refd to. [para. 34].

Czerwinski et al. v. Mulaner et al. (2007), 443 A.R. 125; 2007 ABQB 536, refd to. [para. 34].

979899 Alberta Ltd. v. Alberta et al., [2008] A.R. Uned. 254; 2008 ABQB 57, refd to. [para. 34].

Bonsma v. Information and Privacy Commissioner (Alta.) et al., (2010), 500 A.R.  201; 2010 ABQB 209, refd to. [para. 34].

United Food and Commercial Workers Union, Local 401 et al. v. Westfair Foods Ltd. et al. (2010), 477 A.R. 315; 483 W.A.C. 315; 2010 ABCA 120, refd to. [para. 38].

Lethbridge (City) et al. v. Daisley et al. (2000), 250 A.R. 365; 213 W.A.C. 365; 2000 ABCA 79, refd to. [para. 38].

Nortel Networks Inc. v. Calgary (City) et al. (2008), 440 A.R. 325; 438 W.A.C. 325; 97 Alta. L.R.(4th) 1; 2008 ABCA 370, refd to. [para. 38].

TNL Industrial Contractors Ltd. et al. v. International Brotherhood of Electrical Workers, Local 424 et al., [1998] 10 W.W.R. 47; 225 A.R. 245; 1998 ABQB 241, refd to. [para. 38].

Ward v. University of Prince Edward Island (1997), 157 Nfld. & P.E.I.R. 129; 486 A.P.R. 129 (P.E.I.T.D.), refd to. [para. 63].

Wood et al. v. Wetaskiwin No. 10 (County) (2001), 290 A.R. 37 (Q.B.), refd to. [para. 63].

Kinexus Bioinformatics Corp. v. Asad et al., [2010] B.C.T.C. Uned. 33; 2010 BCSC 33, refd to. [para. 63].

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. 66].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 66].

Qualicare Health Service Corp. v. Information and Privacy Commission (Alta.) (2006), 407 A.R. 63; 2006 ABQB 515, refd to. [para. 68].

Stubicar v. Information and Privacy Commissioner (Alta.) et al. (2008), 440 A.R. 190; 438 W.A.C. 190 (C.A.), refd to. [para. 68].

Penny Lane Entertainment Group et al. v. Information and Privacy Commissioner (Alta.) (2009), 468 A.R. 203; 2009 ABQB 140, refd to. [para. 68].

Lycka v. Information and Privacy Commissioner (Alta.) et al. (2009), 472 A.R. 355 (Q.B.), refd to. [para. 69].

Edmonton Police Service v. Information and Privacy Commissioner (Alta.) et al. (2009), 471 A.R. 82; 2009 ABQB 593, refd to. [para. 70].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 77].

Merchant v. Law Society of Alberta (2008), 440 A.R. 377; 438 W.A.C. 377; 2008 ABCA 363, refd to. [para. 78].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 91].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al. (2003), 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 99].

Alberta Teachers' Association v. Grande Yellowhead Public School Division No. 77 et al., [2010] A.R. Uned. 799; 2010 ABQB 599, refd to. [para. 99].

Robertson v. Edmonton Chief of Police et al. (2003), 339 A.R. 169; 312 W.A.C. 169; 2003 ABCA 279, refd to. [para. 108].

Martselos et al. v. Poitras et al., [2008] F.T.R. Uned. A16; 2008 FC 1413, refd to. [para. 108].

Bear Hills Charitable Foundation et al. v. Gaming and Liquor Commission (Alta.) (2008), 463 A.R. 276; 2008 ABQB 766, refd to. [para. 108].

A.D.M. v. Canadian Institute of Actuaries (2008), 467 A.R. 263; 2008 ABQB 522, refd to. [para. 108].

Alberta (Minister of Employment and Immigration) v. Alberta Federation of Labour et al. (2009), 473 A.R. 49; 2009 ABQB 344, refd to. [para. 111].

Northeast Bottle Depot Ltd. et al. v. Beverage Container Management Board (Alta.) et al., (2000), 269 A.R. 248; 2000 ABQB 572, refd to. [para. 122].

Maple Lodge Farms Ltd. v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 122].

Wimpey Western Ltd. and W-W-W Developments Ltd. v. Director of Standards and Approvals of the Department of the Environment, Alberta (Minister of Environment) and Alberta (1982), 37 A.R. 303 (Q.B.), refd to. [para. 122].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 143].

Alberta (Minister of Employment and Immigration) v. Alberta Federation of Labour et al. (2009), 486 A.R. 23; 2009 ABQB 574, refd to. [para. 151].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), affd. [1994] 3 S.C.R. 1100; 176 N.R. 1, refd to. [para. 163].

Statutes Noticed:

Rules of Court (Alta.), rule 305 [para. 42].

Counsel:

Sandra Anderson (Field LLP), for the applicant;

Glenn Solomon, Q.C. (Jensen Shawa Solomon Duguid Hawkes LLP), for the respondent;

Angela Wright, appeared on her own behalf.

This application was heard on October 5 and 6, 2010, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of judgment on January 12, 2011.