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Info Source Bulletin Number 29

Brian Murdoch v. Royal Canadian Mounted Police and Privacy Commissioner of Canada

Indexed as: Murdoch v. Canada (Royal Canadian Mounted Police)

File No.:	T-1180-04
Reference:	2005 FC 420
Date of decision:	March 29, 2005
Before:	Noël J
Sections of ATIA / PA:	*Ss. 2, 7, 8, 12, 29, 33, 35, 37, 38, 41, 48, 49, 50, 74 Privacy Act* (PA)**
Other statute:	S. 18.1 Federal Courts Act

Abstract

Limited power of Privacy Commissioner to remedy breaches of the PA
Privacy Commissioner is an ombudsperson not an adjudicative body
Denying the award of a penalty to the applicant was correct
Meaning of "recommendation" in s. 35 PA
Meaning of "to extend" in s. 2 PA

Issues

Does the Privacy Commissioner have the power, either explicit or implied, to fashion remedies for unauthorized breaches of the PA beyond those specified in the PA?
Did the Privacy Commissioner err in advising the applicant that no penalty could be imposed by it?

Facts

In the Fall of 2002, a RCMP detachment file concerning an incident involving the applicant was provided by the RCMP to the applicant's employer, the Edmonton Police Service. In March 2003, the applicant filed a complaint with the Privacy Commissioner that the RCMP had breached the PA when it disclosed personal information to his employer without either his consent or a lawful reason for such disclosure.

The Privacy Commissioner concluded the investigation and determined in May 2004 that the applicant's complaint of wrongful disclosure was well-founded. The RCMP agreed with this conclusion. The Privacy Commissioner's report stated that since there was no penalty under the PA for such violation, no further remedy existed.

Notice of application for judicial review was filed with the Federal Court in June 2004. The Prothonotary rejected the Privacy Commissioner's motion to have the application struck out or dismissed.

The applicant argues that where there is a statutory right (in this case, to privacy) with no expressed sanction for a breach of such right, there is prima facie an implied right to be compensated for any breach of this right. S. 35 should be read to include a remedy such as the granting of a penalty against a party who discloses personal information without the consent of the individual concerned.

Decision

The application for judicial review was denied without costs.

Reasons

The parties agreed that the applicable standard of review is that of correctness.

Under a strict reading of the PA and its s. 41, the Federal Court does not have the jurisdiction to review a decision such as the present one, where personal information has not been withheld, but instead disclosed without authorization.

Section 18.1 of the Federal Courts Act grants the Federal Court a broader jurisdiction to hear reviews of federal commission decision but its powers are not absolute. The powers of the Federal Court to remedy a situation are more or less limited to the powers conferred on the initial deciding body.

The Privacy Commissioner's remedial powers, as such, are restricted to making findings and recommendations which are non-binding on the RCMP. The Privacy Commissioner has no authority, implicit or otherwise, to act as an adjudicator by making binding determinations on the parties to a complaint, nor does the PA allow the Privacy Commissioner to award any such remedial relief. The PA remedies are found in ss. 35 and 37 and are both restricted to the issuance of non-binding findings and recommendations.

It is trite law that the jurisdiction of a statutory body (such as the Privacy Commissioner) is limited to what the legislator decided it should be. A proper reading of the PA and especially s. 35 make it clear that Parliament wanted the Privacy Commissioner to be limited to a power of recommendation and no more. The term "recommendation" should be given its ordinary meaning–the offering of advice that is not binding.

General principles of statutory interpretation suggest that a Court should not add powers to the jurisdiction of a statutory body when the legislative provisions creating this body are clear and not subject to interpretation. The Federal Court's jurisdiction to review decisions of the Privacy Commissioner is found in s. 41 of the PA (for those cases where access to personal information requested under s. 12 has been refused) and subs. 18.1(3) Federal Courts Act. In addition, the power of the Federal Court to grant a remedy in those situations is largely restricted to those which the Privacy Commissioner itself could order, i.e., the disclosure of non-disclosed documents (ss. 48-50 PA and subs. 18.1(4) Federal Courts Act). Here, no such information has remained undisclosed, and so this remedy would not be appropriate.

The words "to extend" in s. 2 of the PA cannot be interpreted as recognizing an implicit remedy of compensation given to the Privacy Commissioner. A reading of the PA makes it clear that Parliament intended for the Privacy Commissioner to be an ombudsperson, not an adjudicative body. Making recommendations and granting damages are two totally different functions. Although the 1987 Open and Shut Report^[4] noted that no civil remedies are provided in the PA and recommended that such remedies be inserted, as of today no such amendments have been made. This is not to imply that civil remedies for breach of privacy can never exist, but that under the PA, as it is currently structured, no such remedies are available.

The only remedy available from the Privacy Commissioner is that outlined in subss. 35(1) and (2): providing to both the institution and the complainant the Commissioner's report outlining its findings and any recommendations, if appropriate, and receiving the appropriate notices where necessary. In the present case, this was done: both the RCMP and the applicant were advised that the RCMP's actions violated the PA. No recommendations were made, therefore the RCMP did not have to respond in kind. The Privacy Commissioner committed no error in not acting further on the applicant's complaint.

Comments

The Court noted the Privacy Commissioner's power to comment on the situation in an annual or special report to Parliament. It also noted the availability of s. 74 of the PA which only prohibits civil or criminal actions against a government institution for the wrongful disclosure of personal information where this disclosure is done in good faith. The Court added that if the applicant can show bad faith on the part of the RCMP, then it is possible that the applicant may have an action against the RCMP under the common law.

The decision refers to the applicant's statement of claim filed with the Queen's Bench of Alberta against certain members of the RCMP.

Mr. Murdoch has filed an appeal against this decision.