Murdoch v. Canada (RCMP), 2005 FC 420

June 2014

Summary: The Privacy Commissioner has no authority to order a government institution to take particular steps in response to a Privacy Act complaint, and in particular has no authority to order the government institution to pay damages when it violates an individual’s rights under the Privacy Act by disclosing his or her personal information without consent.

Facts: The Applicant was involved in an incident between the RCMP and his son. The RCMP considered filing charges of obstruction against the Applicant, but did not. The RCMP did, however, forward the detachment file about the incident to the applicant’s employer – the Edmonton Police Service. The applicant filed a complaint against the RCMP under the Privacy Act, and the Privacy Commissioner concluded that the RCMP breached the Privacy Act by disclosing the applicant’s personal information without consent. However, the Commissioner concluded that there was no ability to award a remedy against the RCMP and, therefore, there was nothing more that the Office of the Privacy Commissioner could do. The applicant applied for judicial review of that decision in Federal Court, arguing that the Privacy Commissioner had the authority to award some remedy against the RCMP for a breach of the Privacy Act.

Result: The Federal Court dismissed the application.

Decision: The Federal Court concluded that the Privacy Commissioner does not have the jurisdiction to award damages to an individual or make any other order to remedy a breach of the Privacy Act. The Privacy Commissioner has limited authority under the Privacy Act: he or she can investigate different types of complaints, but his or her remedial authority is limited to making findings and recommendations which are non-binding on government institutions. The Privacy Commissioner is an ombudsperson, not an adjudicator.

The Federal Court concluded that this also means that a judge has no power to award damages for breach of the Privacy Act in an application for judicial review. In an application for judicial review, the Federal Court cannot award damages: it is limited to ordering the federal board, commission or tribunal to make the order it should have made. Since the Privacy Commissioner could not have ordered the RCMP to pay damages, the Federal Court cannot order the RCMP to pay damages either. The Federal Court noted that this did not prevent the applicant from commencing a civil action against the RCMP for damages: section 74 of the Privacy Act only prohibits civil actions against the government for disclosure in good faith of information pursuant to the Privacy Act. Therefore, if the applicant could show bad faith on the part of the RCMP, he may have an action against them in common law.

Principles:

  1. The Privacy Commissioner is an ombudsperson, not an adjudicative body.
  2. The Privacy Commissioner can only make findings and recommendations which are not binding on government institutions; it has no jurisdiction to order a government institution to take any step, or to order that the government institution pay damages when it violates the Privacy Act.
  3. The Federal Court can order the disclosure of documents, but cannot order a government institution to pay damages in an application under s. 41 of the Privacy Act.
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