Loss of jurisdiction is the remedy for delay in privacy cases?

Friday, Feb 5, 2010 12:16 pm
William Barnes

Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner) continues to bug me. It is a recent decision of the Alberta Court of Appeal that held that if an investigation was not completed within 90 days, the Privacy Commissioner would lose jurisdiction over the case. I can’t help but think that the remedy is inappropriate and that in a different case, the court would have made a completely different decision on the law.

The complainants had alleged the ATA breached their privacy. After a lengthy investigation with numerous delays, the Privacy Commissioner found that the complainants’ privacy had been violated. The ATA applied for judicial review. The Privacy Commissioner’s decision was quashed because he did not comply with s. 50(5) of the Personal Information Protection Act:

50(5) 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 [emphasis added]

The Court of Appeal agreed. They held that this provision was intended to “promote inquiry efficiency and the expeditious resolution of privacy claims”. But I don’t think that loss of jurisdiction flows naturally from the provision.

In fact, I think that a completely different legal decision might have been reached under different facts. Let’s imagine a slightly different situation: 18 months have passed and the Commissioner has not conducted an investigation. If the complainant asked for an order compelling the Commissioner to conduct an investigation, would the court have come to the same conclusion regarding jurisdiction? I don’t think so. They probably would have said that the provision protects the complainant’s right to a speedy determination of the case and ordered the Commissioner to investigate in a timely manner.

Section 50(5) can be read as protecting either party—both have an interest in speedy resolution of the matter—but there is nothing in the majority judgment about balancing the interests of the complainants and investigatee in this situation. It was treated as an adjudication of the interests of the Commissioner versus the ATA. In the dissent, Berger J. writes: “Judicial review should not have proceeded without proper notice to the complainants who were denied an opportunity to tender evidence and advance argument.” There were three sides to the matter; only two were heard; and the result is a lack of balance.