Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon, 2005 FC 1000

June 2014

Summary: This case is about the interaction between the rules of procedural fairness in an administrative hearing and privacy interests. The Federal Court concluded that an administrative tribunal must consider the Privacy Act, and privacy interests, when deciding upon the breadth of a summons it issues.

Facts: This case was an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (“RPD”). The respondent was a Convention refugee on the basis that his daughter was suspected of being acquainted with a Sikh militant. His daughter was not granted Convention refugee status because she could not present credible evidence of her relationship with a Sikh militant. Several years later, after she made several attempts to stay in Canada, she admitted to an immigration officer that she made up those allegations at the insistence of her ex-husband. The Minister of Public Safety and Emergency Preparedness (the “Minister”) commenced proceedings to vacate the respondent’s Convention refugee status on the basis of his daughter’s admission.

At a preliminary hearing, the RPD issued a summons ordering the immigration officer to appear and bring the respondent’s daughter’s entire file with him. The Minister objected and brought a motion to vacate the summons to the extent it required production of the entire file, but the RPD confirmed the order. The Minister then applied for to Federal Court to quash the summons.

Result: The Federal Court concluded that the summons was overbroad and ordered the RPD to issue a more constrained summons instead of requiring production of the entire file.

Decision: The Federal Court dealt with a number of preliminary administrative law issues that are not relevant to the Privacy Act. However, the main crux of the Federal Court’s decision concerned the impact of the Privacy Act. The Court recognized that the file contained a great deal of personal information about the respondent’s daughter, and she had not consented to the release of her entire file (it is not clear whether she had been asked). The Court acknowledged that s. 8(2)(c) of the Privacy Act permits disclosure of personal information pursuant to an order of a Court or administrative tribunal such as the RPD; however, “this exception should not be liberally construed.”

The Court’s criticism of the RPD order was that the RPD adopted an “all or nothing” approach to disclosure. The Court stated that the RPD should consider alternatives to full disclosure in order to balance the need for disclosure (as required by the rules of procedural fairness) with the right to privacy. The Court ordered that the RPD review the list of documents in the file and order production of only those documents that contain information relevant to the issue before it – namely, documents relevant to the alleged misrepresentation about the daughter’s relationship with a Sikh militant.

Principles:

  1. An administrative tribunal must consider privacy rights and the Privacy Act before ordering disclosure in the course of a hearing.
  2. A tribunal should not adopt an “all or nothing” approach to disclosure: instead, a more nuanced approach where only the relevant documents are disclosed is necessary.
  3. A tribunal should consider alternatives to full disclosure in order to strike a balance between the need for disclosure and the right to privacy.
  4. A tribunal should not order the disclosure of personal information which has no apparent relevance to the issues before the tribunal.
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