IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Privacy Commissioner ( |
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2003 BCSC 862 |
Date: 20030605
Docket: S57566
Registry: Kelowna
Between:
The Privacy Commissioner of
Plaintiff
(Respondent)
And
The Attorney General of
The Solicitor General of
The Commissioner of The Royal Canadian Mounted Police
Defendants
(Applicants)
Before: The Honourable Mr. Justice R.W. Metzger
Reasons for Judgment
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Counsel for the Plaintiff (Respondent): |
Morris Manning, Q.C. Jonathon Feasby
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Counsel for the Defendants (Applicants): |
Harry J. Wruck, Q.C. |
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Date and Place of Trial/Hearing: |
March 12-14, 2003 |
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Kelowna, B.C. |
[1] The Privacy Commissioner of Canada has commenced an action in the Supreme Court of British Columbia seeking a declaration by the court that the Kelowna RCMP video surveillance violates the plaintiff’s and the public’s s. 2(d), 6, 7 and 8 Charter rights and is in breach of the United Nations Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
[2] The
Attorney General of
1. The court has no jurisdiction to hear the matter as the Privacy Commissioner has no legal capacity to sue, and thus the statement of claim is a nullity.
2. Under Rule 19(24)(a), the Privacy Commissioner has no standing; therefore, the statement of claim should be struck out.
[3] The lack of standing and other objections raised by the Attorney General of Canada are not appropriate for an application under Rule 19(24)(a), as there are not plain and obvious answers to the questions raised. These defences are appropriate matters for a trial judge.
[4] The Attorney General of Canada submits that as Parliament, in its creation of the Privacy Commissioner through the Privacy Act, R.S. 1985, c. P-21, saw fit to not grant the Commissioner the capacity to sue, the Commissioner cannot initiate this action.
[5] The
Attorney General of
[6] The Privacy Commissioner submits that there are a number of reasons why the court must go beyond the plain words of the statute and find an implied power to sue. Briefly stated, the reasons for a broad and liberal interpretation to the statute are:
1. The Privacy Commissioner has been compared to an ombudsman by the Supreme Court of Canada;
2. The Privacy Commissioner has been granted intervenor status on many occasions by the Supreme Court of Canada;
3. The title and purpose of the Privacy Act;
4. The quasi-constitutional nature of the Privacy Act;
5. The Privacy Commissioner has been appointed under the Great Seal;
6. The Privacy Commissioner is a special officer of Parliament;
7. This is a question of public importance, and the court has a residual discretion to make certain that important issues are heard on the merits; and
8. The question of jurisdiction is a question to be determined at trial.
Powers and Duties:
[7] The
powers and duties of the Privacy Commissioner are succinctly described
by the Supreme Court of Canada in Lavigne v.
The Privacy Act provides for the appointment of a Commissioner responsible for administering and enforcing the Act. The Privacy Commissioner's duties include:
- receiving (and investigating) complaints from individuals who allege that personal information about themselves held by a government institution has been used or disclosed otherwise than in accordance with s. 7 or 8 (s. 29(1)(a)), and receiving (and investigating) complaints from individuals who have been refused access to personal information requested under s. 12(1) or who allege that they are not being accorded the rights to which they are entitled under s. 12(2) (s. 29(1)(b) and (c));
- initiating a complaint where the Privacy Commissioner is satisfied there are reasonable grounds to investigate a matter under the Privacy Act (s. 29(3));
- carrying out investigations of the files contained in personal information banks designated as exempt banks under s. 18, to determine whether the files should in fact be in those banks (s. 36);
- carrying out investigations in respect of compliance with ss. 4 to 8 (collection, retention and protection of personal information) (s. 37);
The
Privacy Commissioner has broad powers for the purposes of conducting
investigations into complaints
that are filed. He has access to all information held by a government
institution, with the exception of confidences of the Queen's Privy Council
for
After completing his investigation, the Privacy Commissioner reports his findings to the head of the government institution in question, if he finds that a complaint is well-founded. Where appropriate, the Privacy Commissioner may report his findings to the complainant. In his report, he may ask the head of the government institution in question to disclose the personal information in issue or to make changes in the management or use of personal information (ss. 35, 36 and 37).
Ombudsman Role:
[8] In Lavigne, supra, the court compared the Privacy Commissioner’s role to that of an ombudsman. They described that role by quoting Dickson C.J. in British Columbia Development Corp. v. British Columbia (Ombudsman), [1984] 2 S.C.R. 447 at pp. 458-59:
...the Ombudsman’s main function came to be the investigation of complaints of maladministration on behalf of aggrieved citizens and the recommendation of corrective action to the governmental official or department involved.
[9] The
Attorney General of
Intervenor Status:
[10] The Privacy Commissioner maintains that, as he has been granted intervenor status by the Supreme Court of Canada on many occasions, without an express power to intervene provided for in the statute, it is obvious that the statute has to be interpreted broadly.
[11] The Attorney General of Canada replies that the conferring of intervenor status on an applicant does not in any way confer on that body the power to sue. I agree. Intervenor status has been granted on many occasions to many different bodies wishing to present a particular interpretation of a statute or the common law. The granting of such status does not change the statutory makeup of that body. In Canadian National Railway Co. v. Canadian Transport Commission, [1988] 2 F.C. 437 at p. 450, the court quoted with approval Lord Reid’s statement in Essex Incorporated Congregational Church Union v. Essex County Council, [1963] A.C. 808 (H.L.) at pp. 820-821:
...in my judgment, it is a fundamental principle that no consent can confer on a court or tribunal with limited statutory jurisdiction any power to act beyond that jurisdiction,...
Title of Act:
[12] The Privacy Commissioner argues that the long title of the Privacy Act is an important part of determining the scope and purview of the statute itself. That long title is “An Act to extend the present laws of Canada that protect the privacy of individuals and that provide individuals with a right of access to personal information about themselves.” The Privacy Commissioner submits the court must imply the power to sue, in order for him to effect the purpose of the statute. (See Hudon v. United States Borax & Chemical Corp. et al. (1970), 11 D.L.R. (3d) 345 (Sask.Q.B.) and R. v. Thompson, [1990] 2 S.C.R. 1111 para. 27). I am satisfied that these cases do not stand for the proposition that the courts are to add a power that Parliament has seen fit not to grant. The Privacy Act provides the necessary powers for the Privacy Commissioner to effect its purpose and fulfill his obligation.
Quasi-constitutional Statute:
[13] The Privacy Commissioner points out that in Lavigne, supra, the Supreme Court of Canada recognized the Privacy Act as having quasi-constitutional status. I note the court went on to say at para. 25:
However, that status does not operate to alter the traditional approach to the interpretation of legislation, defined by Driedger in Construction of Statutes (2nd ed. 1983), at p.87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
The quasi-constitutional status of the...Privacy Act is one indicator to be considered in interpreting [it], but it is not conclusive in itself. The only effect of this Court’s use of the expression “quasi-constitutional” to describe [the Act] is to recognize [its] special purpose.
[14] The court goes on to describe the objectives and purposes of the Privacy Act and the powers and duties of the Privacy Commissioner. I am satisfied that nowhere in Lavigne, supra, does the court conclude or suggest that the Privacy Commissioner should have the capacity to pursue the formal and expensive path of court proceedings. That route is always open to an individual or statutory body with the power to sue. The scheme, object and wording of the Act make clear that the intention of Parliament was not to grant the Privacy Commissioner the power to commence such a suit.
Officer of Parliament - Great Seal of Canada:
[15] The Privacy Commissioner submits that he is an officer of Parliament appointed under the Great Seal of Canada and, as such, has the capacity to sue because such an appointment carries with it all rights of the Crown. The Commissioner argues that as the Crown and its officers have had the privilege to commence lawsuits, the Privacy Commissioner’s privilege to seek this declaratory relief should not be taken away without a full trial on the issue. (See Canada v. Sayward Trading and Ranching Co., [1924] Ex. C.R. 15; Farwell v. Canada (Attorney General) (1894), 22 S.C.R. 553; McArthur v. Canada, [1943] Ex. C.R. 77; Perepelytz v. Ontario (Minister of Highways), [1958] S.C.R. 161; Privacy Act, s. 53(1); The Eastern Trust Co. v. MacKenzie, Mann and Co. Limited (1915), 22 D.L.R. 410 (J.C.P.C.); Glazer v. Union Contractors Ltd. and Thornton (1960), 25 D.L.R. (2d) 653 (B.C.S.C.); Referenced re: Troops in Cape Breton, [1930] S.C.R. 554; Re Saskatchewan Natural Resources Reference, [1931] 4 D.L.R. 712 (J.C.P.C.))
[16] The Privacy Act clearly sets out the Privacy Commissioner’s statutory duties. The Privacy Commissioner is not a servant of the Crown. He is considered an employee of the Crown only for the purposes of certain compensation claims (s. 54(4) of the Privacy Act). I am satisfied that the Privacy Commissioner’s appointment under the Great Seal of Canada does not confer on him a power that Parliament did not expressly grant, in particular the capacity to commence a lawsuit such as this one.
Important Issue:
[17] The Privacy Commissioner submits that the Supreme Court of Canada made it clear in Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157 case that there is a residual discretion in the courts to decide cases of public importance on their merits, even where it may appear the plaintiff has no status to maintain the action. The court stated at para. 34:
In our opinion, it is now time to expand the exception to allow corporations to invoke the Charter when they are defendants in civil proceedings instigated by the state or a state organ pursuant to a regulatory scheme.
[18] As that case involved a determination of standing, it is of no assistance to the Privacy Commissioner at this stage of the hearing. Standing should usually be heard by the trail judge. The preliminary matter before me is not one of standing; it is a matter of jurisdiction. Without the capacity to commence the action, there is no question for the court to consider as the statement of claim would be a nullity.
Trial Judge Decision:
[19] The Privacy Commissioner submits that the matter of jurisdiction should be before the trial judge. However, in Jamieson et al. v. Attorney-General of British Columbia, [1971] 21 D.L.R. (3d) 313 (B.C.S.C.), Mr. Justice Aikins had this to say at p. 323:
If I were to accede to Mr. Berger’s argument I would be driven to accept this as a sound proposition of law: that in a case where it is objected in limine that the plaintiff has no standing to maintain the action, and it is found on hearing the objection that indeed the plaintiff has no status, then there is a discretion in the Court to allow the plaintiff to go ahead with the action and to hear the case, even although, putting it in a rather colloquial way, the plaintiff had no business bringing the action at all. I have not been given nor have I been able to find authority for this proposition and I do not think it to be sound in law.
[20] I am satisfied that it is appropriate to determine the question of jurisdiction before trial, as it may be that the plaintiff “...had no business bringing the action at all”. I note that the Privacy Commissioner has estimated the length of this trial at 10 days, while the Attorney General’s estimate is for 40 days.
Conclusion:
[21] The Privacy Commissioner brings this suit not as a private individual but in his official capacity with all of the authority and expertise of his office. The Privacy Commissioner asserts that when litigation is involved, constitutionally he cannot be separated from his individual capacity as a natural person. I disagree. The Privacy Commissioner argues that somehow access to the court is restricted or denied when that is clearly not the case given the rights of a natural person. He is attempting to extend the authority of his office when, as a matter of legislative policy, parliament has not given the Privacy Commissioner such statutory authority.
[22] I am satisfied that the Privacy Commissioner does not have the capacity to commence this suit; therefore, the statement of claim is a nullity.
[23] Costs to the applicant/defendant, party and party, Scale 3.
“R.W. Metzger, J.”
The Honourable Mr. Justice R.W. Metzger
July 28, 2003 – Corrigendum to the Reasons for Judgment issued by Mr. Justice R.W. Metzger advising that reference to Mr. Jonathon Feasby as counsel for the plaintiff was inadvertently omitted on the title page. The Reasons for Judgment are amended accordingly. In all other aspects, the Reasons stand.