ARCHIVED - Info Source Bulletin Number 29

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Minister of Public Safety and Emergency Preparedness and Pargat Singh Kahlon

Indexed as: Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon

File No.:	IMM-3443-05
Reference:	2005 FC 1000
Date of decision:	July 19, 2005
Before:	Tremblay-Lamer J.
Sections of ATIA / PA:	Ss. 8(1), 8(2)(c) Privacy Act (PA)
Other statutes:	Ss. 72, 109, 162(1), 165 Immigration and Refugee Protection Act, S.C. 2001, c. 27; Rules 29, 39(2), 40, 45, 46 Refugee Protection Division Rules, SOR/2002-228; s. 4(b) Inquiries Act, R.S.C. 1985, c. I-11

Abstract

• Para. 8(2)(c) PA not to be liberally construed
• A body considering whether to order production of government records must consider alternatives to full disclosure in order to strike a balance between the need for disclosure and the government's privacy obligations under s. 8 of the Privacy Act

Issue

When issuing a summons to a government institution party to litigation to produce documents in order to allow the opposing party to prepare full answer and defence, is the Refugee Protection Division obligated to consider the privacy interests protected by the Privacy Act?

Facts

The respondent obtained protected person status as a Convention refugee on the basis that his daughter was suspected of being acquainted with a Sikh militant. Some years later, the respondent's daughter admitted that the facts underlying her own claim for refugee status and, thus, that of her father, were fraudulent. Consequently, an application to vacate was brought before the Refugee Protection Division of the Immigration and Refugee Board^[10] (the "RPD") against the respondent.

In the course of the preliminary proceedings before the RPD, the latter issued a summons ordering the production of the entire immigration file of the respondent's daughter. The Minister objected to the summons and brought a motion to cancel it pursuant to rule 40 of the Refugee Protection Division Rules. The RPD denied this motion and ordered that respondent's counsel was entitled to consult the documents pertaining to the respondent's daughter in order to prepare and present a full response to the testimony that she was expected to give.

The Minister applied for judicial review under s. 72 of the Immigration and Refugee Protection Act challenging the RPD's decision. The Minister submits that the RPD exceeded its power to compel evidence by ordering the summons at issue and, in turn, denying its motion to quash it. It is argued that the RPD must strike a balance between the respondent's need to defend himself and the confidentiality of the Minister's file. The summons ordering the production of documents concerning the respondent's daughter should be as detailed as possible. The documents, if their relevance is contested, should be inspected by the RPD first, unless they are clearly irrelevant.

The respondent maintains that the decision of the RPD should not be interfered with. He submits that the criterion of "necessity" was not improperly applied in light of the particular facts of the case, the public interest in confidentiality will not be prejudiced, and that his right to a "full and proper hearing" must be accorded a preceding importance.

Decision

The application for judicial review was allowed. The matter was referred back for re-determination by a differently constituted RPD panel.

Reasons

The Court first dealt with two preliminary questions: whether the application for judicial review was premature and the applicable standard of review. The Court was satisfied that the application for judicial review was not premature. If disclosure of the daughter's personal information were allowed to occur, the privacy interest of the daughter sought to be protected by the Privacy Act would be completely lost, which no subsequent remedy could undo. With respect to the second question, the Court, applying the pragmatic and functional approach test, held that reasonableness simpliciter was the appropriate standard of review.

In finding that the decision of the RPD to deny the applicant's motion to quash the summons ordering the production of the whole of the respondent's daughter's immigration file was unreasonable, the Court provided three interrelated reasons, the second of which engaged the purposes of the Privacy Act.

In the Court's view, the decision to deny the application to quash the summons was unreasonable because of its failure to consider the privacy interest put in jeopardy by the summons the RPD issued.

The interest in ensuring a "full and proper hearing"–procedural fairness or natural justice–does not stand alone; it must be weighed against competing interests: Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3. As a result, the right of the respondent to respond fully to the case against him in the context of the application to vacate must be weighed against competing interests, most notably, the privacy of the respondent's daughter. The latter's immigration file contains personal information as defined by the Privacy Act. This legislation, as a rule, requires non-disclosure of personal information: subs. 8(1).

The Supreme Court of Canada held that the Privacy Act has quasi-constitutional status, emphasizing the obligation of government institutions to protect personal information: Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773. Thus, while para. 8(2)(c) the Privacy Act allows for the disclosure of personal information pursuant to an order issued by a Court or other body such as the RPD , this exemption should not be liberally construed. Rather, personal information, which has no apparent relevancy to the issues underlying the application to vacate, ought not to be readily disclosed.^[11]

The RPD should consider alternatives to full disclosure in order to strike a balance between the need for disclosure and the right to privacy. Where competing interests are at play, an "all-or-nothing approach" is simply not appropriate: A.M. v. Ryan, [1997] 1 S.C.R. 157, paras. 33-34.

In the result, the Court ordered that the RPD should review the list of documents contained in the respondent's daughter's immigration file and order production of only those documents that appear to contain information relating to the misrepresentations which the respondent was alleged to have made. If the RPD were unable to assess whether a particular document might contain relevant information, it should inspect the document first and then decide whether to order production.

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