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Info Source Bulletin Number 27

Privacy Commissioner of Canada v. Attorney General of Canada, Solicitor General of Canada, Commissioner of the Royal Canadian Mounted Police

Indexed as: Canada (Privacy Commissioner)
v. Canada (Attorney General)

File No.:	S57566
Reference:	2003 BCSC 862*
Date of decision:	June 5, 2003
Before:	Metzger J.
Sections of ATIA / PA:	*Ss. 29(1), (3), 34(1), (2), 35, 36, 37, 42, 43, 53(1), 54(4) Privacy Act* (PA)**

Abstract

Privacy Act not conferring legal capacity to sue on Privacy Commissioner of Canada
Legal capacity to sue not obtained by ombudsman-like nature of Privacy Commissioner's role, nor by prior granting of intervenor status, nor by virtue of appointment under the Great Seal of Canada
Legal capacity to sue not obtained by virtue of the "quasi-constitutional" status of the Privacy Act alone nor by an interpretation of the long title of the Act
Court's residual discretion to consider merits of a case where plaintiff's standing is unclear does not extend to remedy of lack of jurisdiction

Issue

Does the Privacy Commissioner of Canada have legal capacity to sue?

Facts

The plaintiff, the Privacy Commissioner of Canada, sought a declaration that the Kelowna RCMP detachment's video surveillance (1) violated the plaintiff's and the public's rights under ss. 2(d), 6, 7, and 8 of the Canadian Charter of Rights and Freedoms; and (2) breached the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The defendants applied to have the action struck out on two grounds: (1) that the Privacy Commissioner lacks legal capacity to sue; (2) that under Rule 19(24)(a) of the Supreme Court Rules, B.C. 221/90 as am., the Privacy Commissioner lacks standing.

Decision

The application to strike was allowed. The Privacy Commissioner's statement of claim was declared a nullity.

Reasons

The lack of standing and other objections raised by the Attorney General of Canada are not appropriate for an application under Rule 19(24)(a), as there are not plain and obvious answers to the questions raised. These defences are appropriate matters for a trial judge.

The Privacy Commissioner lacks legal capacity to sue. First, to liken the Privacy Commissioner to an ombudsman, as the Supreme Court of Canada did in Lavigne v. Canada (Office of the Commissioner of Official Languages) (2002), 214 D.L.R. (4^th)1; 2002 SCC 53, does not imply a capacity to sue, since an ombudsman must assess both sides of a complaint and does not act as counsel for the complainant.

Second, the granting of intervenor status to the plaintiff in other cases does not change the Privacy Commissioner's statutory makeup and thus bestows no capacity to sue.

Third, since the Privacy Act provides the necessary powers for the Privacy Commissioner to effect its purpose and fulfill his obligation, the Court has no authority to add to these powers by resort to an interpretation of the long title of the Act.

Fourth, the fact that the Supreme Court in Lavigne, supra, referred to the Privacy Act as "quasi-constitutional" does not, in itself, imply the bestowal of additional powers not conferred on the Privacy Commissioner by Parliament. The scheme, object, and wording of the Act make clear that the intention of Parliament was not to grant the Privacy Commissioner the power to commence such a suit.

Fifth, while the Privacy Commissioner is appointed under the Great Seal of Canada and considers himself "an officer of Parliament," this does not confer any capacity to sue. The Privacy Commissioner is not a servant of the Crown. He is considered an employee of the Crown only for the purposes of certain compensation claims (subs. 54(4) of the Privacy Act). I am satisfied that the Privacy Commissioner's appointment under the Great Seal of Canada does not confer on him a power that Parliament did not expressly grant, in particular the capacity to commence a lawsuit such as this one.

Sixth, any residual discretion in the courts to decide cases of public importance on their merits even where the plaintiff appears to lack the status to maintain the action (Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157) is confined to issues of standing and does not go to the remedying of a lack of jurisdiction, which is the issue here. Without the capacity to commence the action, there is no question for the Court to consider, as the statement of claim would be a nullity.

Finally, it is proper for the issue of legal capacity or jurisdiction to be considered here rather than by the trial judge as the Privacy Commissioner may have no business bringing the action at all.

Comments

The Office of the Privacy Commissioner has withdrawn its appeal in this case.