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Info Source Bulletin Number 28
Tunian v. Chairman of the Immigration and Refugee Board of Canada
Indexed as: Tunian v. Canada (Chairman of the Immigration and Refugee Board)
| File No.: | T-691-03 |
| Reference: | 2004 FC 849 |
| Date of decision: | June 10, 2004 |
| Before: | Martineau J. |
| Sections of ATIA / PA: | Ss. 12(1), 22(1)(b) Privacy Act (PA) |
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Abstract
Draft reasons/notes made by member of IRB in his adjudicative capacity not under control of Board
Issue
Did the Immigration and Refugee Board err by concluding that it did not have control for the purposes of subs. 12(1) PA of draft reasons/notes prepared by one of its members?
Facts
The applicants sought review of the decision by the respondent not to disclose draft reasons (the "notes") prepared by a member of the Immigration and Refugee Board who made the decision determining that the applicants were not Convention refugees.
After the hearing of the applicants' refugee claims, the Board Member dictated the notes using the same equipment that was also used to record the proceedings. The dictation was transcribed but the Board did not retain a copy of the transcription as it was of the opinion that it belonged to the Board Member and, accordingly that it was not part of the official record of the Board. Therefore, relying on Canada (Privacy Commissioner) v. Canada (Labour Relations Board) (2000), 257 N.R. 66 (F.C.A.), aff'g [1996] 3 F.C. 609 (T.D.), the request made by the applicants to obtain the notes was denied.
The respondent's decision not to disclose the notes was the subject-matter of a complaint to the Privacy Commissioner of Canada, who determined that the notes were not under the Board's "control", and therefore were not subject to disclosure.
The present application was made pursuant to s. 41 of the PA.
Decision
The application was dismissed.
Reasons
The Court found that the underlying reasoning in both the trial and appeal decisions in Canada (Privacy Commissioner), supra, applied here: deference should generally be accorded to the independence of decision-makers exercising an adjudicative function. Like the Canada Labour Relations Board, the IRB is a quasi-judicial tribunal. Its members are Governor in Council appointees, not employees of the Board. They exercise an independent adjudicative function. The Board does not require its Members to keep draft reasons or notes from a hearing on the official record, as it is part of the decision-making process associated with an independent adjudicative function and, as such, should not be under the control of the Board. Rather, the Board's policy is that Board Members are encouraged to keep notes to the extent that notes are an aid in the decision-making process. Accordingly, all notes, including draft reasons, prepared by Board Members are considered to belong to the Board Member.
The mere fact that the Board Member has used the Board's equipment to record the notes does not make them part of the official record of the proceedings before the Board. The notes were dictated after the hearing had been adjourned. Clearly, they were intended for the eyes of the Board Member only. The act of dictating the notes was a private act of the Board Member which could have been otherwise done in the Board Member's chamber. Further, considering that no final decision had been made at the time the notes were prepared, it cannot be said that the Board Member had relinquished to the Board the control he legally had over the notes, or that he had otherwise waived any right he has under the common law or the PA to resist any request to communicate the notes.
Taking into account the quasi-judicial nature of the Board and the context in which the notes were made, the Court found that the notes were not under the control of the Board as to come within the ambit of para. 12(1)(b) of the Act. The Court added that, even if the notes were under the Board's control, they would likely be exempt from disclosure under para. 22(1)(b) of the Act, as their disclosure would compromise the operation of the Board.
