Canadian Association of Elizabeth Fry Societies v. Canada (Public Safety and Emergency Preparedness), 2010 FC 470

June 2014

Summary: When an individual requests her personal information and then consents to the release of that information to her representative, that consent survives the individual’s death.

Facts: Ashley Smith was a youth offender who had been imprisoned since she was 15 years of age. She committed suicide in her cell on October 19, 2007. Prior to her death, she requested access to her personal records under the Privacy Act. She sought the assistance of the Elizabeth Fry Society, and signed a Consent for Disclosure of Personal Information Form to permit Correctional Services of Canada (“CSC”) to disclose this information to the Elizabeth Fry Society and her lawyer. CSC received her request on June 18, 2007. On July 18, 2007 CSC advised Ms. Smith’s lawyer that a 30-day extension beyond the statutory 30-day limit in s. 14 of the Privacy Act would be required to process the request. CSC did not disclose the records at the conclusion of the 30-day extension. When the Elizabeth Fry Society followed up with the request on May 23, 2008, CSC responded that all files were exempted because of Ms. Smith’s death. The Elizabeth Fry Society complained to the Privacy Commissioner, who concluded the records should be disclosed. CSC still refused, so the Elizabeth Fry Society commenced an application in Federal Court.

Result: The Federal Court ordered that the records be disclosed.

Decision: The first, and most important, issue the Federal Court addressed was whether Ms. Smith’s suicide vitiated her consent to release the documents to the Elizabeth Fry Society. The Court concluded that her consent was not vitiated by her death, and that the consent was not intended to lapse or be of no force and effect because she died. In other words, an individual’s right to grant access to their personal information survives their death. Section 10 of the Privacy Regulations sets out who may exercise rights under the Privacy Act. It states that those rights may be exercised on behalf of a deceased person by the estate administrator, or on behalf of any other individual by a person authorized in writing to do so. CSC argued that the provision dealing with estate administrators was the only way that personal information could be obtained on behalf of a deceased person. The Court disagreed: as long as the consent is in writing, the requesting party can rely upon that consent regardless of the individual’s living status. Ms. Smith was alive when she signed the consent and also alive when CSC was deemed to refuse to provide the records (30 days after their last request for an extension, or August 17, 2007) and therefore the refusal crystallized on that date.

The Court also criticized CSC for breaching ss. 14 and 15 of the Privacy Act by failing to provide the information within 30 days or within the 30-day extension of time. The CSC submitted that these delays “happen all the time”, but the Court stated that “the fact that the delay is normal does not excuse the respondent from being in breach of the law by not fulfilling the request within the prescribed time period under the Privacy Act.”

Finally, CSC attempted to rely upon s. 22(1)(b) of the Privacy Act because there was, at one point, a criminal investigation into four CSC officers about Ms. Smith’s suicide. However, there was no such investigation at the time the documents should have been released, and the investigation was over by the time the Court heard this case. The Court concluded that the CSC did not present any tangible evidence of harm to an investigation: CSC simply asserted that the disclosure would harm an investigation. Further, the records requested all pre-dated Ms. Smith’s suicide (which was the subject of the investigation), so the investigation could not have related to the information in the requested records.

Principles:

  1. A request under the Privacy Act, accompanied by written consent to provide the records to a third party (such as a lawyer or other representative), survives the requester’s death.
  2. A government institution needs to provide tangible evidence of harm to an investigation before relying upon this ground to refuse to disclose personal information to an individual (confirming the principle in Lavigne v. Canada (Office of the Commissioner of Official Languages)).
  3. The fact that delays in processing requests for access under the Privacy Act are “normal” does not excuse a government institution’s breach of the law by not fulfilling the access request within the prescribed time period under the Privacy Act.
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