Category Archives: Privacy

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

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

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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Supreme Court hears Alberta Privacy Case

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?

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

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

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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