Potentially Detrimental Consequences for the Office of the Information and Privacy Commissioner in Alberta Teacher’s Association

The Alberta Court of Appeal (“ABCA”) recently released its decision in Alberta Teachers’ Association v Alberta (Information and Privacy Commissioner), 2010 ABCA 26, dealing with time extensions by the Privacy Commissioner and consequences following the breach of the time rules set out in Personal Information Protection Act, SA 2003, c P-6.5 [PIPA]. The Alberta Court of Queen’s Bench (“ABQB”) had held that if an investigation is not completed within 90 days then the Privacy Commissioner would lose jurisdiction over the case.

Although the ABCA agreed with the final judgment of the ABQB, it did not follow the same reasoning. The ABCA also set out various principles in its judgment that might have a detrimental impact on the Office of the Information and Privacy Commissioner (IPC) in the form of increased number of cases for judicial review, unnecessary delays, increase in backlog of cases due to the time constraints, and other administrative difficulties.

Background

Various complainants claimed that the Alberta Teacher’s Association (ATA) breached their privacy in its publication, “ATA News,” issued in October and December 2005. The Privacy Commissioner affirmed this after a lengthy investigation with numerous delays and extensions. Ten months after the request for inquiry, the Commissioner further extended the time before the decision was to be released. The final adjudicator’s decision was given seventeen-and-a-half months after the request for inquiry was submitted by the complainants. The adjudicator determined that the ATA disclosed personal information about the complainants in the “ATA News,” contrary to sections 5 and 7 of the PIPA. Not satisfied with this decision, the ATA applied for judicial review. The ATA argued that the Privacy Commissioner’s decision did not comply with section 50(5) of the PIPA, which states,

An inquiry into a matter that is the subject of a written request referred to in section 47 must be completed within 90 days from the day that the written request was received by the Commissioner unless the Commissioner

(a) notifies the person who made the written request, the organization concerned and any other person given a copy of the written request that the Commissioner is extending that period, and
(b) provides an anticipated date for the completion of the review

The Court of Queen’s Bench agreed with the ATA and quashed the adjudicator’s decision, finding that the Privacy Commissioner lost his jurisdiction to make a decision when he failed to meet the time requirements set out in section 50(5) of the PIPA. The judge found that these time requirements were mandatory. He noted that although courts may have discretion to disregard the excess time in certain circumstances, the amount of time between the request for inquiry and decision in this case was too substantial to be disregarded.

Principles Set Out By ABCA

The ABCA held that the order to quash the adjudicator’s decision was correct. The ABCA set out various principles that have significant implications for the IPC and the Privacy Commissioner when dealing with the limitation period.

(1) Privacy Commissioner Cannot Extend the Limitation Period After its Expiration Set Out in Section 50(5) of the PIPA

Interpreting the statutory language of section 50(5) of the PIPA, the ABCA concluded that the time rules were “more imperative than mere suggestions”, and that the limitation period was mandatory. Any “substantial departure” from the time rules could result in a termination of the process and the decision. The Court of the Queen’s Bench had the authority and discretion to assess whether there was a substantial or prejudicial departure from the time rules. The ABCA held that “[a]n inference that the time rules in s.50(5) of PIPA are mandatory and imperative follows from the word ‘must’ in the section and from the Interpretation Act, R.S.A. 2000, c. I-8.”

The ABCA noted that the Privacy Commissioner has the power to extend the 90-day limitation period before, but not after, the expiration of the period. If the Privacy Commissioner could extend the limitation period after it ends, then the use of the word “must” in the provision would be “meaningless” and the Commissioner would have the authority to override the timing rule for all cases that he considers erroneous. This was not the intention of the statute.

(2) The Discretion of the Privacy Commissioner Relating to the Extension of the Limitation Period is Subject to Judicial Review

If the Privacy Commissioner does extend the time within the limitation period set out in section 50(5) of the PIPA, the exercise of this discretion will be subject to judicial review. “Blanket or routine extensions” will not be considered reasonable if “they cannot also be justified in the specific circumstances of the case”. In other words, the courts have to conduct a contextual and objective analysis to determine the result in any case. The ABCA declined to set out any bright line tests when it would be appropriate for the Court to presume prejudice.

(3) Breach of the Time Rules Does Not Lead to an Automatic and Unforgivable Termination of the Process

Noting the mandatory nature of section 50(5) of the PIPA, the court nevertheless concluded that a breach of the times rules would not cause “an automatic and unforgivable termination of the ability to complete the inquiry process.” Reading the statute in adherence with the legislative intention, design, and purpose, the court held that “an automatic and inexorable finalizing consequence” may “overshoot the legislature’s intention.” The public interest purpose of the time rules was “to promote inquiry efficiency and expeditious resolution of privacy claims,” and these objectives should not be defeated “willy nilly.”

Although no universal rule can be laid down, the court held that automatic termination would not be applicable in such a situation because it would frequently affect parties who have no influence over the process. The court, quite succinctly, set out the basic principle with respect to automatic termination:

“[A]bsent a clear indication by the legislators that the fatal consequence should be automatic and inexcusable in the case of mandatory provisions, it is reasonable to infer that the legislators intended that the court should be allowed to decide, in the specific context, whether the breach is so substantial that such a destructive consequence is appropriate and necessary.”

Other factors to consider include “the language of the statute (in its ordinary and grammatical sense), the context of the statute, the object of the statute and the effect of a finding of automatic and inevitable consequences.”

(4) Rebuttable Presumption of the Termination of the Process when Default is Raised as a Consequence of Breach of the Time Rules

The ABCA disagreed with the ABQB and held that “loss of jurisdiction” was not one of the consequences of a breach of the time rules. Considering the 90-day time limitation, together with the discretion of the Privacy Commissioner to extend the time period under section 50(5) of the PIPA, it is clear that the legislature was aware that flexibility was essential to a fair and just result. The legislature tried to strike a balance by making the time rules mandatory, but with a presumptive consequence of termination of the inquiry process at the time an objection is made upon breach.

This presumptive consequence can be rebutted by proving both of the following:

“(a) substantial consistency with the intent of the time rules having regard to the reason for the delay, the responsibility for the delay, any waiver, any unusual complexity in the case, and whether the complaint can be or was resolved in a reasonably timely manner, and
(b) that there was no prejudice to the parties, or, alternatively, that any prejudice to the parties is outweighed by the prejudice to the values to be served by PIPA.”

This principle would apply anytime there was a default of the time rule, including a situation where time has been extended and then expires.

(5) Rebuttals and Objections Should Be Raised Earlier in the Process

Any rebuttals to the presumptive consequence and the process should be raised at the earliest opportunity. Waiting for the outcome and then raising the objection will not be acceptable. Following any objections, the Privacy Commissioner now has a duty to consider whether the presumptive consequence applies or whether it has been successfully rebutted. The Privacy Commissioner is obligated to provide reasons for the decision, although the court does not specify whether such reasons must be written or oral. This decision will be subject to judicial review.

Implications

This decision has numerous consequences for the IPC, the Privacy Commissioner and adjudicators. Following this case, they will be required to consider the objections, come to a conclusion regarding the successful rebuttal of the consequence and be able to provide reasons as to why they reached that conclusion. For ease and convenience in case of judicial review, it is recommended that the Privacy Commissioner and adjudicators have written copy of the reasoning behind their conclusion.

It is not surprising that the IPC and the Privacy Commissioner anticipate a substantial increase in judicial review application subsequent to this decision. This increase may lead to various administrative and efficiency issues as the Courts deal with the increase in cases expeditiously and equitably. It might lead to increase in backlog and unnecessary delays because of the time constraints. Furthermore, parties may lose their privacy remedies because of the principles set out by the ABCA and a lack of resources to meet court requirements.

This case may also have negative consequences for recently submitted cases. Any parties currently submitting complaints may have to reconsider and revise their submissions to meet the requirements and principles set out in this case. Because of the impact of the ABCA’s decision on various parties, it is likely that the IPC will appeal to the Supreme Court of Canada. An amendment to the PIPA may be another repercussion following this decision.