90-T-706
Ronald Allan Moar (Applicant)
v.
The Privacy Commissioner of Canada and
Canadian Security Intelligence Service
(Respondents)
INDEXED AS: HOAR V. CANADA (PRIVACY COMMISSIONER)
(T.D.)
Trial Division, Reed J.—Ottawa, May 14, 1991.
Privacy — Airline employee receiving security clearance
after delay — Seeking access to personal information in CSIS
files — Filing complaint under Privacy Act — Privacy Com
missioner concluding CSIS refusal to allow access justified —
Application for review of refusal — Privacy Commissioner
moving to be struck as respondent on basis that under Act, s.
41 refusal decision, not Privacy Commissioner's recommenda
tion, subject to judicial review — Privacy Commissioner's
decision integral part of scheme — S. 41 review extends to
Commissioner's condonation of refusal as well as refusal itself.
Construction of statutes — Whether French version of por
tion of Privacy Act, s. 41 more accurately defining scope of
judicial review contemplated — No substantive difference
between two versions.
Practice — Parties — Privacy Commissioner moving to be
struck as respondent upon application for judicial review of
personal information access denial — General rule that plain
tiff may name as defendants those considered cause of injury
— Much of relief sought herein concerning Commissioner's
handling of investigation — Motion denied.
This was a motion by the respondent, the Privacy Commis
sioner, to be removed as a party to the action.
The applicant in the principal action was engaged by Air
Canada in March, 1988, to work at Vancouver International
Airport, and began his duties there April 3, 1988. His employ
ment was conditional on obtaining a security clearance after
review by the Canadian Security Intelligence Service. Clear
ance was not granted until November 21, 1988. The applicant
apparently applied to see the information on him in CSIS'
files, and was denied access. He then complained to the Pri-
vacy Commissioner, who informed the applicant by letter
dated March 30, 1990 that he had concluded that the refusal
was justified. The applicant brought an application under sec
tion 41 of the Privacy Act.
The Privacy Commissioner argues that the French text of
section 41, which provides an applicant with "un recours en
révision de la décision de refus", is more precise and more in
keeping with the purposes of the Act than is the English text
which speaks of "a review of the matter" and that, since the
decision to refuse was that of CSIS, the Privacy Commissioner
is not a proper party to the action.
Held, the motion should be dismissed.
Section 41 is to be interpreted in the context of the Act as a
whole. Section 12 gives a right of access to personal informa
tion contained in government files, and section 16 requires an
institution which refuses access to notify an applicant of the
right to complain to the Privacy Commissioner. Subsection
35(5) requires the latter to inform a complainant, where there
is a continuing refusal, of the right to apply to the Court for a
review. The court review is triggered only after the Privacy
Commissioner has made his decision. The refusal to provide
access is a continuing refusal which is supported by the deci
sion of the Commissioner. The review contemplated by section
41 encompasses the decision of the Commissioner.
Where there is a difference between the French and English
versions of a statutory provision, the version prevails which is
most in keeping with the scheme of the legislation as a whole,
its purpose and object. Here, however, the difference is not one
of substance. If it were, the breadth of the English drafting
would accord more closely with the objectives and scheme of
the Act as a whole. It was not the intention of Parliament to
separate out the role of the Privacy Commissioner from the
purview of a section 41 review.
A plaintiff is entitled to implead those he considers to have
been the cause of the injury which is the subject-matter of the
action. Much of the relief sought herein concerns the Privacy
Commissioner's handling of the investigation. Accordingly, it
was not only appropriate but necessary to have named that
official as a respondent.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 324.
Official Languages Act, R.S.C., 1985, c. O-3, s. 9.
Privacy Act, R.S.C., 1985, c. P-21, ss. 12(1), 13, 19(1),
21, 22(1)(b),(2), 23(a), 26, 35, 41, 42.
CASES JUDICIALLY CONSIDERED
APPLIED:
Ternette v. Solicitor General of Canada, [1984] 2 F.C.
486; (1984), 10 D.L.R. (4th) 587; [1984] 5 W.W.R. 612;
32 Alta. L.R. (2d) 310; 9 Admin. L.R. 24 (T.D.).
REFERRED TO:
R. v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R.
865; [1979] C.T.C. 71; (1979), 79 DTC 5068; 25 N.R.
361.
AUTHORS CITED
Beaupré, Remi Michael. Construing Bilingual Legislation
in Canada, Toronto: Butterworths, 1981.
Meagher, Arthur 1. and Meagher, Ronald A. Parties to an
Action, Toronto: Butterworths, 1988.
COUNSEL:
Peter F. Pauwels for applicant.
John E. M. Lawrence, Q. C. for respondent Pri
vacy Commissioner of Canada.
Mary A. Humphries for respondent Canadian
Security Intelligence Service.
SOLICITORS:
Lauk & Associates, Vancouver, for applicant.
Blake, Cassels & Graydon, Vancouver, for
respondent Privacy Commissioner of Canada.
Deputy Attorney General of Canada for respon
dent Canadian Security Intelligence Service.
The following are the reasons for order rendered in
English by
REED J.: This is an application by the Privacy Com
missioner seeking to be removed as a respondent
from these proceedings. The proceedings to which
the application relates is one by which the applicant
is seeking a review of a refusal to provide him with
access to personal information sought pursuant to
subsection 12(1) of the Privacy Act, R.S.C., 1985, c.
P-21:
12. (1) Subject to this Act, every individual who is a Cana-
dian citizen or a permanent resident within the meaning of the
Immigration Act has a right to and shall, on request, be given
access to
(a) any personal information about the individual contained
in a personal information bank; and
(b) any other personal information about the individual
under the control of a government institution with respect to
which the individual is able to provide sufficiently specific
information on the location of the information as to render it
reasonably retrievable by the government institution.
Facts and Procedural History
The applicant obtained employment with Air
Canada at the Vancouver International Airport in
March, 1988. He commenced work there on April 3,
1988. That employment was conditional on the appli
cant obtaining security clearance which was carried
out, in part at least, by the Canadian Security Intelli
gence Service ("CSIS").
There was, what seemed to the applicant, consider
able delay in proceeding with that clearance process.
(The applicant was granted security clearance on
November 21, 1988.) It is not clear from the material
on the file exactly when he sought access to the per
sonal information concerning him which exists on
CSIS files. The applicant's affidavit of July 16, 1990
states that "he filed a complaint under s. 12(1) of the
Privacy Act on September 12, 1989". Subsection
12(1) gives an individual the right to have access to
information but it is not pursuant to that section that a
complaint to the Privacy Commissioner is made.
Since the application before me came by way of Rule
324 [Federal Court Rules, C.R.C., c. 663], an appli
cation in writing, and since the exact sequence of
events is not crucial for present purposes, I have not
sought clarification of this aspect of the case. I have
assumed that there was a prior refusal by CSIS, of a
request made pursuant to subsection 12(1) 'and sec
tion 13 which gave rise to the complaint to the Pri
vacy Commissioner on September 12, 1989.
In any event, in a letter dated March 30, 1990 the
Privacy Commissioner wrote to the applicant stating
that the Commissioner's investigation had led him to
conclude that the refusal by CSIS to provide access to
the information was justified pursuant to sections
19(1), 21, 22(1)(b),(2), 23(a) and 26 of the Privacy
Act. These allow refusal in cases: where the personal
information concerning the individual has been
obtained in confidence from another level of govern
ment or one of its institutions; where disclosure could
reasonably be expected to be injurious to the conduct
of international affairs, the defence of Canada, or the
efforts of Canada to detect or prevent subversive
activities; where disclosure could reasonably be
expected to be injurious to the enforcement of law or
the conduct of lawful investigations; where the infor
mation was obtained from a confidential source in the
course of a lawful investigation; where it was pre
pared for an investigative body for the determination
of whether to grant security clearance; where it con
tains personal information concerning others in addi
tion to information concerning the person making the
request for access.
After receiving the Privacy Commissioner's letter,
the applicant commenced the present proceedings
pursuant to section 41 of the Privacy Act. The origi
nal application cited only the Privacy Commissioner
as a respondent and contains the following allega
tions:
1. That the Appellant has a right to access pursuant to the Pri
vacy Act which right has been abridged by the Respondent
without sufficient grounds.
2. That the decision of the Respondent to apply the provision
of s. 19(1) of the Privacy Act in the absence of a finding that
the information which was obtained from an institution of a
municipal government was obtained in confidence is wrong in
law.
3. That the decision of the Respondent to apply the provision
of s. 19(1) of the Privacy Act in the absence of a finding that
the information which was obtained from an institution of the
municipal government, was not released because the institution
having been fully and objectively informed of the nature of the
application of the Applicant denied its consent to the release of
the information is wrong in law.
4. That as the documents which are the subject matter of the
application relate to the employment of the Appellant, it is rea
sonable to conclude that the grounds claimed by the Privacy
Commissioner pursuant to s. 22(1)(b) of the Privacy Act are
unreasonable, inapplicable and/or irrelevant to the application
of the Appellant under s. 12(1) of the Privacy Act.
5. That the Respondent erred in law in applying the wrong
standard or no standard at all with respect to his findings as to
what "may reasonably be expected to be injurious" within the
meaning of s. 21 and s. 22(1)(b).
6. That the Respondent erred in law in applying the wrong
standard or no standard at all with respect to his findings as to
what "may reasonably be expected to reveal" within the mean
ing of s. 23(a).
7. That as the documents which are the subject matter of appli
cation relate to the Applicant himself and not to others, it is
reasonable to conclude that the grounds claimed by the Privacy
Commissioner pursuant to s. 26 are unresonable [sic], inappli
cable or irrelevant to the application of the Appellant under s.
12(1) of the Privacy Act.
8. That the Respondent erred in law in applying the wrong
standard or no standard at all with respect to his findings as to
what constitutes "personal information about an individual
other than the individual who made the request" in s. 26.
9. That the Appellant was denied his right to natural justice or
fairness by:
a. the decision of the Respondent to not provide sufficient
information such that the Appellant could have an opportu
nity to make oral or written submissions to the Respondent
as to why access should be allowed.
b. the failure of the Respondent to comply with requirements
of the Privacy Act by responding in a timely fashion and in
accordance with the time limitations specified in the Act.
c. the failure of the Respondent to fully disclose the reasons
for refusal except to state he is "satisfied that these exemp
tions are properly claimed in accordance with the law".
Counsel for the applicant was subsequently
advised that CSIS also should be named as a respon
dent. The style of cause was subsequently so
amended.
Application by Privacy Commissioner to be
Removed as Respondent
The Privacy Commissioner now brings a motion to
be struck out as a respondent in this application. The
main argument as I understand it, is based on the text
of section 41 of the Privacy Act:
41. Any individual who has been refused access to personal
information requested under subsection 12(1) may, if a com
plaint has been made to the Privacy Commissioner in respect
of the refusal, apply to the Court for a review of the matter
within forty-five days after the time the results of an investiga
tion of the complaint by the Privacy Commissioner are
reported to the complainant under subsection 35(2) or within
such further time as the Court may, either before or after the
expiration of those forty-five days, fix or allow. [Underlining
added.]
The Commissioner argues that the French text of
section 41 is more precise and more in keeping with
the purposes of the Privacy Act and that it clearly
indicates that it is the decision refusing access to the
documents which is subject to review pursuant to
section 41 and not the recommendations of the Pri
vacy Commissioner. It is CSIS which gave the
refusal.
There is no dispute concerning the law. When a
difference exists between the French and English ver
sions of a provision of a statute, the version which is
most in keeping with the scheme of the legislation as
a whole, its purpose and object, prevails: Official
Languages Act, R.S.C., 1985, c. O-3, section 9; R. v.
Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R.
865, at pages 871-872; Beaupré R. M., Construing
Bilingual Legislation in Canada (Toronto: But-
terworths, 1981) at page 125.
It is useful to set out the respondent's written argu
ment in this regard. In part, it is as follows:
22. Section 41 of the Privacy Act, in its English version,
enables an individual who has been refused access to personal
information and who had made a complaint to the Privacy
Commissioner with respect to such refusal to "apply to the
Court for a review of the matter" (emphasis added).
23. Section 41 of the Privacy Act, in its French version,
enables an individual who has been refused access to personal
information and who has made a complaint to the Privacy
Commissioner with respect to such refusal to "exercer un
recours en révision de la décision de refus devant la Cour"
(emphasis added).
24. The Respondent respectfully submits that the French ver
sion of section 41 of the Privacy Act is more precise than the
English version. The Respondent respectfully submits further
that the French version of section 41 of the Privacy Act is more
consonant with the scheme, intent and spirit of the Privacy Act
which charges the head of a government institution with the
responsibility, subject to the provisions of the Privacy Act, to
grant or refuse access to personal information requested by
individuals and the Privacy Commissioner with the mandate,
inter alfa, to receive complaints from individuals who have
been refused access to personal information by a government
institution, to review the matter and to make recommendations
to the government institution in relation to the refusal.
25. The Respondent therefore respectfully submits that the
word "matter" in section 41 of the Privacy Act must be taken
to mean "decision to refuse" and that section 41 thus autho
rizes an application by an individual who has been refused
access to personal information for a review of the decision of
such refusal. Since the Privacy Commissioner is not empow
ered by the Privacy Act to make such a decision, he cannot be
a respondent to an application under section 41.
Consideration
I do not share the respondent's interpretation of
section 41. It is important, as the respondent argues,
to place that section within the context of the Act as a
whole. Section 12 gives individuals a right of access
to personal information concerning them contained
in government files (subject to certain exceptions).
Section 13 provides that an individual who wishes
such access shall make a request in writing to the
government institution which has control of the
information. If the head of that institution refuses
access, he or she is required to notify the individual
of the refusal and of the fact that a complaint can be
made to the Privacy Commissioner concerning the
refusal (section 16). There is no section which in
express terms gives the individual the right to make
such a complaint, for example, by stating "every per
son who has been refused ... may initiate a com
plaint with ... ". This right is implied from the fact
of the notice which must be given pursuant to section
16 and from section 29. Section 29 obligates the Pri
vacy Commissioner to receive and investigate com
plaints which are received from individuals who have
been refused access.
After the Privacy Commissioner has investigated a
complaint he or she reports to the individual who
filed it (section 35). If the report is that the complaint
is well founded, a prior notification of this will have
been given to the government institution (section 35)
and time allowed for that institution to grant the
access sought before a report is made to the com
plainant. Whether the Commissioner determines that
the complaint is well founded and the head of the
institution still refuses access or the Commissioner
determines that the initial refusal was justified, the
complainant has a right to seek review by the Federal
Court. Subsection 35(5) provides:
35....
(5) Where, following the investigation of a complaint relat
ing to a refusal to give access to personal information under
this Act, access is not given to the complainant, the Privacy
Commissioner shall inform the complainant that the complain
ant has the right to apply to the Court for a review of the matter
investigated.
Subsection 35(5) prescribes the giving of notice when
a complainant is refused access and, as noted above,
section 41 provides for the right of review by the
Federal Court, on application by the disappointed
complainant.
If the Privacy Commissioner has recommended
access and the government institution has refused to
comply with that recommendation, the Privacy Com
missioner may in certain circumstances, apply to the
Federal Court for a review of the refusal to disclose
(section 42). Nothing is specifically said about the
role of the Privacy Commissioner before the Federal
Court in cases where continued refusal has been rec
ommended by the Privacy Commissioner and the
applicant seeks a review by the Court.
I do not think that the statutory context described
above leads to a conclusion that when the applicant
seeks a review pursuant to section 41, consequent
upon a decision of the Privacy Commissioner uphold
ing the institution's decision not to grant access, that
the Privacy Commissioner is not to be a respondent
in that action. I draw the opposite conclusion from
the context to that drawn by the respondent. This is in
part because the Court review is only triggered after
the Privacy Commissioner has made his decision.
The Privacy Commissioner's decision is an integral
part of the whole scheme. I am not convinced that the
difference in the wording of the French and English
versions is a substantive one, or one which leads to
the conclusion which it is sought to draw. The refusal
to provide access is a continuing refusal. After the
Commissioner's investigation, it is a refusal which in
part at least, is conditioned by the fact that the Com
missioner has not recommended access. The refusal
is supported by the decision of the Commissioner.
The review of the refusal contemplated by section 41,
in my view, encompasses the decision of the Com
missioner in supporting or condoning the refusal as
well as the refusal itself.
I do not think much can be drawn from the fact
that the Privacy Commissioner only recommends
access rather than ordering such (that is, he or she
reports on the validity of the individual's complaint).
The general rule is that a plaintiff (or applicant) is
entitled to cite as defendant (or respondent) those
parties which the plaintiff considers to have been the
cause of the injury which forms the subject-matter of
the action (or application): Meagher and Meagher,
Parties to an Action (Toronto: Butterworths, 1988) at
page 13. In the present case much of the relief sought
is directed at the Privacy Commissioner's handling of
the investigation. In such circumstances I think it is
entirely appropriate, indeed, necessary to have named
the Privacy Commissioner as a respondent.
Also, I do not think much can be drawn from the
fact that there is no express provision in the statute
setting out the role of the Privacy Commissioner in
applications pursuant to section 41. As has been
noted above, with respect to the right of individuals
to file complaints, not every eventuality need be set
out in express detail in order to be contemplated
under the Act. If one were applying the civil proce
dure rules of Quebec, it seems to me this situation
would easily be encompassed by adding the Commis
sioner as a mis -en-cause and there would be no ques
tion about the appropriateness of doing so.
Lastly, if I am wrong in my interpretation of what
is contemplated by "un recours en révision de la
décision de refus" and the English version, "a review
of the matter", is significantly different and broader
in scope than its French counterpart, then, I think the
English text more closely accords with the objectives
and scheme of the Act as a whole. I cannot think it
was Parliament's intention to separate out the role of
the Privacy Commissioner from the purview of a sec
tion 41 review. I note that in Ternette v. Solicitor
General of Canada, [1984] 2 F.C. 486 (T.D.), Mr.
Justice Strayer, by way of dicta, made some com
ments respecting the role of the Privacy Commis
sioner in section 41 cases, at pages 491-492:
At the hearing, the applicant, who was not represented by
counsel, supplemented this general request with some specific
complaints against the Privacy Commissioner. He contended
that the Commissioner's letter indicated that he had not carried
out an investigation; that he had failed to advise the applicant
as to whether there was or was not any such information con
cerning him in this exempt bank; and that he had failed to
apply to the Court for a review of the applicant's file (if
indeed, there is one in this bank) as he is authorized to do
under section 43 of the Act. To the extent that these latter com
plaints should be taken as a request for some specific remedy
against the Privacy Commissioner such as mandamus, I do not
think they can be entertained without at least impleading the
Privacy Commissioner.
I believe, however, that having regard to the Act and the
notice of motion this application should be treated as one under
section 41 of the Act whereby "Any individual who has been
refused access to personal information requested under subsec
tion 12(1) may, if a complaint has been made to the Privacy
Commissioner in respect of the refusal, apply to the Court for a
review of the matter ..... It appears to me that the generality
of the words "review of the matter" is sufficient to allow me,
within the limits otherwise imposed by the Act, to review the
conduct of the Governor in Council, the Solicitor General, the
RCMP, and the Privacy Commissioner as it relates to the
refusal to provide the applicant with the information he seeks.
[Underlining added.]
I share this view.
Conclusion
For the reasons given the respondent's application
will be dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.