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Info Source Bulletin Number 27
Jean-Pierre Galipeau v. Attorney General of Canada and
Human Resources Development Canada
Indexed as: Galipeau v. Canada (Attorney General)
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File No.: |
T-608-02 |
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References: |
2003 FCT 828 (affirmed by the Federal Court of Appeal, 2003 FCA 223—see comments at the end of the summary) |
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Date of decision: |
July 26, 2002 |
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Before: |
Lemieux J. |
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Sections of ATIA / PA |
Ss. 41, 48 and 49 Privacy Act (PA) |
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Abstract
- Requirements to fulfil for a motion to strike to be granted
- S. 41 of the PAonly applies where access is refused
- Remedies provided for in ss. 48 and 49 of the PA
Issue
Did the defendants fulfil the requirements relating to the striking-out of an application?
Facts
The defendants requested the striking-out of the judicial review application submitted by Mr. Galipeau under s. 18.1 of the Federal Court Act and s. 41 of the Privacy Act.
Following an access request by Mr. Galipeau, documents on applications for a social insurance number were disclosed to him. The applicant later submitted a complaint to the Office of the Privacy Commissioner of Canada alleging that some of the information on the copies he received of the application forms were illegible, that some forms seemed to have been falsified and that the writing on one of them was not his. Following his investigation, the Commissioner found that the original SIN application forms no longer existed because they had been destroyed after being transferred to microfiche, that some of the details on the illegible information had been sent to the applicant, that he could examine the microfiche on site and that it was not within the Commissioner's jurisdiction to have the applicant's writing analyzed.
The aim of the judicial review application was the destruction of the false documents and the sorting of some microfiche.
Decision
The judicial review application was struck out.
Reasons
A motion to strike is granted only if the defendants demonstrate that the application is so clearly futile "that it has not the slightest chance of succeeding, whoever the judge may be before whom the case could be tried." (See Creaghan Estate v. The Queen, [1972] F.C. 732, (T.D.).) In the present case, the judge determined that the defendants had fulfilled all the requirements.
The text of s. 41 of the PA is clear: a judicial review application under the Act applies only where access is refused. In the present case, the Department disclosed the requested personal information to the applicant. In addition, the Court estimates that the remedies sought by the applicant exceed those provided for by Parliament in ss. 48 and 49 of the Act.
Comments
The Federal Court of Appeal confirmed this decision in a judgment dated May 14, 2003 (2003 FCA 223; [2003] F.C.J. No. 770 (QL)). The Court of Appeal found that s. 41 of the PA could not be applied in this case because the provision grants a right of review to the person who is refused access to the personal information requested under subs. 12(1) of the Act. However, the appellant had access to all the documents in his file; it was therefore not a refusal of access. In addition, the power of intervention attributed to the Court in s. 48 of the PA is in accordance with the nature of the remedy under s. 41 and is therefore limited to an order to disclose the requested information. It does not include its destruction.
Leave to appeal to the Supreme Court of Canada was dismissed on October 16, 2003.
