Oleinik v. Canada (Privacy Commissioner), 2011 FC 1266, affirmed by 2012 FCA 229 (“Oleinik #1”) and 2013 FC 44 (“Oleinik #2”)

June 2014

Summary: These cases set out some procedural rules with respect to the ability of the Federal Court to judicially review reports and recommendations of the Privacy Commissioner.  There are two separate cases involving similar issues, and those two cases will be dealt with in turn.

Oleinik #1

Facts:  The Applicant applied unsuccessfully for a Social Sciences and Humanities Research Council (“SSHRC”) grant in 2007.  In 2008, he submitted an access to personal information request to SSHRC in connection with his failed application.  SSHRC complied with this request.  The Applicant was dissatisfied with SSHRC’s response, and filed a complaint with the Privacy Commissioner.  The Privacy Commissioner investigated the complaint and issued a report concluding that his complaint was not well founded. 

Instead of applying to the Federal Court under s. 41 of the Privacy Act for an order against SSHRC, the Applicant applied for judicial review against the Privacy Commissioner’s report.  The Applicant alleged that the Privacy Commissioner erred in not upholding his complaint that SSHRC had withheld personal information, and also alleged that the Privacy Commissioner breached the rules of procedural fairness in the manner of the investigation into his complaint. 

Result: The Federal Court dismissed the application.  The Federal Court of Appeal upheld the Federal Court’s decision without expanding upon the Federal Court’s reasons.

Decision: The Federal Court concluded that the Applicant could not challenge the substance of the Privacy Commissioner’s actions by way of an application for judicial review.  The Privacy Commissioner does not make decisions; he or she only makes recommendations.  The Applicant’s only recourse is to bring an application pursuant to s. 41 of the Privacy Act against SSHRC. 

The Court concluded that the Applicant could bring an application for judicial review against the Privacy Commissioner in respect of alleged breaches of procedural fairness.  The process of the investigation itself was amenable to review, even though Privacy Commissioner’s final recommendation was not. 

The Applicant alleged three procedural defects, all of which the Court rejected.  First, the Applicant alleged that the Privacy Commissioner’s investigator erred by failing to consider all available and material evidence.  The Court rejected that argument, finding that the report was “balanced and thorough.”  Second, the Applicant alleged that the investigator should have sent him a draft report and given him the opportunity to comment.  The Court concluded that there was no obligation to share a draft of the report and, in any event, the investigator had a “continuous dialogue” with the Applicant throughout the investigation.  Third, the Applicant alleged that the Privacy Commissioner had an institutional bias in favour of government institutions generally, and specifically against him because of his ethnicity.  The Court rejected both claims out of hand because there was no evidence in support of either argument. 

Oleinik #2

Facts: While the first court case was ongoing, the Applicant filed another complaint against SSHRC, which the OPC again concluded was not well founded. The Applicant also made two access requests with the Office of the Privacy Commissioner (“OPC”) for all documents in the custody and control of the OPC, including information stored on the OPC’s backup e-mail server.  The OPC disclosed several documents, but withheld others on the basis of various sections of the Privacy Act.  The OPC informed the Applicant that if he was dissatisfied with its response to his access request, he could file a complaint with the Privacy Commissioner ad hoc.  The Applicant instead filed an application for judicial review against the OPC in Federal Court with respect to the OPC’s report and its response to the Applicant’s access request.

Result: The Federal Court struck the application against the OPC.

Decision: The application was, in part, an attempt to re-litigate the finding in Oleinik #1 that the Applicant could not challenge the substance of the Privacy Commissioner’s report by way of judicial review. The Court therefore struck that portion of the application on the basis that it was an abuse of the Court’s process.

The Court struck the remainder of the application on the grounds that the Privacy Act provides an alternative method for the Applicant to follow – namely, to complain to the Privacy Commissioner ad hoc.  The Privacy Commissioner ad hoc is appointed by the Privacy Commissioner, who has delegated her powers to deal with complaints against the OPC.  The Privacy Commissioner ad hoc’s mandate includes receiving and investigating complaints from individuals who have been refused access to personal information held by the OPC.  Even though the Privacy Commissioner ad hoc is not a legislated position, an individual must still file a complaint with that official before proceeding to Federal Court.

Principles:

  1. An individual cannot file an application for judicial review to overturn the substance of a Privacy Commissioner report.  The report is non-binding, and cannot be challenged by judicial review.  The individual must file an application under s. 41 of the Privacy Act against the government institution that allegedly refused to provide access to personal information under the Privacy Act.
  2. An individual can challenge a report by the Privacy Commissioner on procedural grounds.
  3. The OPC is not obligated to give complainants the opportunity to comment on draft reports.
  4. The OPC is not institutionally biased in favour of government institutions.
  5. The OPC is a government institution and also subject to the Privacy Act.  If an individual requests access to personal information under the control of the OPC and is dissatisfied with the response, he or she must file a complaint with the Privacy Commissioner ad hoc instead of going directly to Federal Court.
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