PDF version: “Amended Amended Redacted Document” Ordered Released to the Press and Public Fifteen Days after Judgment

Case considered: Globe & Mail v Alberta, 2011 ABQB 363 (”Globe and Mail“)

When the police want to obtain a search warrant, they file a document with a justice of the peace or judge called an “Information to Obtain a Search Warrant” or “ITO”. In this case, Judge J.D. Bascom had sealed the contents of an ITO filed on a case with respect to an “Unnamed Company”. The Globe and Mail applied to the Court of Queen’s Bench for access to the ITO (subject to some redactions).

Justice William Tilleman dealt with the application for access to the ITO, and noted that he had to “face the difficult task of balancing the sometimes competing rights to freedom of expression and the press, with the administration of justice, the protection of innocent persons, and the right to a fair trial” (Globe and Mail at para 2).

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PDF version: There’s no right to absolute privacy when you want to build something in a city 

Case commented on: Edmonton (City) v. Alberta (Information and Privacy Commissioner), 2011 ABQB 226

There is no absolute right to privacy in the context of planning and development within a municipality. In a contest between the right to privacy and the right to enjoy one’s own property without interference from a neighbour, a balance must be struck. Otherwise, we’d be constantly in each other’s faces over actions such as one neighbour arbitrarily chopping down trees straddling the line between two homes or mowing down a line of bushes running between two houses. One person’s pleasure is another person’s annoyance - the source of such annoyance could be something as seemingly innocuous as an outdoor hot tub on a second floor balcony.

When an Edmonton property owner named Kim Mah read details about her application for a development permit in a community newsletter, she complained to the Office of the Information and Privacy Commissioner that her privacy was breached. Rather oddly, in light of the fact that neighbouring property owners do have the right to know about such matters, a Commission adjudicator agreed. Even stranger, the Commissioner found that an appeal board with the independent power to review development proposals was instead a City of Edmonton department. Rather appropriately, the City’s legal department applied for a judicial review. Quite rightly, a Queen’s Bench judge read the relevant legislation against the facts, found that the Commissioner had erred, and sent Mah’s complaint back to the Privacy Commissioner to reconsider.

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PDF version: Leon’s Furniture and Privacy: When is it Unreasonable to be Reasonable? 

Case considered: Leon’s Furniture Limited v Alberta (Information and Privacy Commissioner), 2011 ABCA 94

This significant privacy case illustrates some of the difficulties courts (and many lawyers and law students) experience with the appropriate legal tests for judicial review of administrative decisions. Generally, on judicial review, courts will apply a high level of deference for the decisions of tribunals, and will examine whether the decision was “reasonable.” Over the course of several years, the courts have determined that when reviewing a decision of an administrative tribunal, where that tribunal has expertise in the area, or the review involves a question that is within the core function of the tribunal, the standard of review is “reasonableness.” On the other hand, the reviewing court will employ the standard of “correctness” when the situation calls for the interpretation of a question of law that is not specifically within the area of expertise of the tribunal. One of the key issues in this case is whether the Information and Privacy Commissioner’s interpretation of the reasonableness standard provided under the Personal Information Protection Act, RSA 2000, c P-6.5 [”PIPA“] was reasonable.

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PDF version: Issue of Timing Arises Again: Alberta Court of Queen’s Bench Quashes Decision of Information and Privacy Commissioner for Reasonable Apprehension of Bias 

Case considered: Alberta Teachers’ Association v Alberta (Information and Privacy Commissioner), 2011 ABQB 19 (”Wright“)

Once again, the issue of timing in the investigation of privacy complaints has been raised. In Alberta Teachers’ Association v Alberta (Information and Privacy Commissioner) (”Wright“), pending litigation on the issue of timing currently before the Supreme Court of Canada (”SCC”) prevented the Alberta Court of Queen’s Bench from dealing with the timing issue; see the “Supreme Court hears Alberta Privacy Case” post commenting on ATA News v Information and Privacy Commissioner, 2010 ABCA 26 (”ATA News“). Nevertheless, since timing was raised again as an issue in Wright, the outcome of the SCC decision in ATA News will be important.

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Case considered: Information and Privacy Commissioner v. Alberta Teachers’ Association, an appeal from 2010 ABCA 26

Yesterday the Supreme Court of Canada heard the appeal in Information and Privacy Commissioner v. Alberta Teachers’ Association, an appeal from 2010 ABCA 26. For a comment on the Court of Appeal decision, see Court of Appeal Decision on Privacy Process Likely to Have Significant Impact on Office of Information and Privacy Commissioner. Here is a summary of the case from the SCC’s website: “Ten individuals complained to the Office of the appellant Information and Privacy Commissioner that the respondent Alberta Teachers’ Association disclosed, in contravention of the Personal Information Protection Act, S.A. 2003, c. P 6.5, their personal information by publishing their names and other information about them in a publication called the “ATA News”. The adjudicator found that the Association had disclosed the complainants’ personal information contrary to ss. 7 and 19 of the Act. On judicial review, the adjudicator’s decision was quashed on the basis that the Commissioner lost jurisdiction for failing to comply with the time lines set out in s. 50(5) of the Act. The Court of Appeal, in a majority decision, upheld that decision.” The issues raised in the case include: Whether it is appropriate for a court, on judicial review, to review a matter that has not been decided by the tribunal at first instance? What consequences ought to flow when a tribunal breaches a statutorily imposed time line?

Case considered: University of Alberta v. Alberta (Information and Privacy Commissioner), 2010 ABQB 89

PDF version: Court Addresses the Duty of a University to Assist a Professor who was Seeking Information Related to his Teaching

In Alberta, universities are subject to the Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 (”FOIPA“). University of Alberta professor Dr. Mikhail Kovalyov applied to the University for access to two kinds of records (but only the first kind of record was the subject of the court case). His original access to information request asked for information pertaining to his proposal for changes to a math course provided to the Chair and Associate Chair of the Mathematical and Statistical Sciences Department (”Math Department”); in particular, he asked for “written complaints, notes of oral complaints and any and all other documentation including any email between the Chair and Associate Chair or anyone else pertaining to this matter” (at para. 2). The University asked for clarification of the request, and Dr. Kovalyov replied with additional information, including a CD containing an audio-recording of a conversation between unidentified individuals discussing the math course and related complaints. The University wrote to Dr. Kovalyov, replying that it understood that Dr. Kovalyov was also requesting the documents the Chair referred to at the end of the audio-record, as well as all other documents, emails, notes, phone records pertaining to any information related to it, including information about the identification of the person from the very top of the University that the Chair referred to in the recorded conversation. Dr. Kovalyov did not reply to the University’s clarification letter.

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Case considered: Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner), 2010 ABCA 26

PDF version:  Court of Appeal Decision on Privacy Process Likely to Have Significant Impact on Office of Information and Privacy Commissioner

In a rare move, the Alberta Information and Privacy Commissioner, Frank Work, issued a strongly worded news release in response to the Alberta Court of Appeal’s decision in Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner) (”ATA“). See January 29, 2010, “Commissioner Work expresses Grave Concern over Recent Court of Appeal Ruling.” Mr. Work said, “This decision may have dire implications for every tribunal in this province which has stipulated timelines. There should be a lot of concern on that front.” What prompted this comment?

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Case considered:  Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2009 ABQB 593

PDF version: Further Developments in the Cassels FOIPPA Matter

Recent developments in the case of Cassels highlight a difficulty faced by many people who request access to information held by public bodies. Since one is hoping to gain access to the desired information, one has to “guess” wisely about what information to ask for, from which department and in which format (e.g., electronic or paper). The agencies from which one requests information are not obligated under the law to create new records from their information, nor to incur great inconvenience and expense in order to provide the requested information. Thus, the wording of the request becomes very important-even in the absence of specific knowledge about what information is available.

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PDF Version: Privacy and Video Surveillance on Campus

With thanks to Greg Hagen for his helpful suggestions on a draft of the blog.

Recently, I was walking across the campus at the University of Calgary and noticed that there was a display by an anti-abortion group (Campus Pro-Life Club). Because of a dispute over permission to have the display, the University had posted warning signs and barricades. One University sign indicated that the group was videotaping everyone who spoke to the display’s staffers and that this was contrary to the University’s Privacy Policy. Since I am aware that the University uses surveillance cameras, this incident caused me to wonder what rights students, staff and the public have with regard to video surveillance on campus, whether by the University or by others on campus.

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Case considered: Edmonton Police Service v. Alberta (Information and Privacy Commissioner), 2009 ABQB 268

PDF version: Queen’s Bench Follows Business Watch rather than Kellogg, Brown and Root Regarding Jurisdiction of Privacy Commissioner

In an earlier post on Kellogg, Brown and Root (”KBR“), 2007 ABQB 499, I noted the unfortunate impact on a complainant when, as provided in the Personal Information Protection Act, R.S.A., 2000, c. 6.5 (”PIPA“), the Privacy Commissioner failed to launch an Inquiry within 90 days, and the Alberta Court of Queen’s Bench held that PIPA s. 50(5) was mandatory. Thus, the Privacy Commissioner lost jurisdiction. The matter was appealed, and Alberta Court of Appeal did not deal with the issue, as the complainant had died, and the appeal was declared moot (see 2008 ABCA 384).

The Edmonton Police Service (”EPS”) case seems to indicate that the KBR decision may be distinguished and confined to its specific facts.

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