Calgary Board of Education v Alberta (Information and Privacy Commissioner), 2013 ABQB 187

Court of Queen ’ s Bench of Alberta Citation: Calgary Board of Education v Alberta (Information and Privacy Commissioner), 2013 ABQB 187 Date: 20130327 Docket: 1201 00480 Registry: Calgary Between: Calgary Board of Education Applicant / Respondent - and - Office of the Information and Privacy Commissioner Respondent / Applicant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.L.

Veldhuis _______________________________________________________ Judicial Review from Amanda Swanek, Adjudicator Dated the 1 st day of December, 2011 (Order F2009-048, Docket: F4397) [ 1 ] This is an application by the Office of the Information and Privacy Commissioner (the “ Privacy Commissioner ” ) to dismiss the originating application filed by the Calgary Board of Education (the “ CBE ” ) seeking judicial review of a decision rendered on December 1, 2011.

[ 2 ] For clarity, the CBE is the applicant for judicial review and respondent on this application. The Privacy Commissioner has brought this application, but is respondent on the underlying application for judicial review. Background [ 3 ] An individual (the “ Complainant ” ) complained to the Privacy Commissioner that the CBE misused his personal information. The Complainant is a former employee of the CBE and, in 2003, was the subject of harassment allegations which were resolved. [ 4 ] In 2007, the Complainant gave evidence in a separate, and unrelated, CBE Board of Reference proceeding.

Through cross- examination of the Complainant, the CBE sought to introduce documents related to the 2003 harassment allegations against the Complainant. To determine if the material would be admissible, the Board of Reference ordered the CBE to disclose a copy of the documents, which it did. The introduction and disclosure of those documents formed the subject matter of the complaint to the Privacy Commissioner. [ 5 ] The complaint was heard by an adjudicator who ruled on three questions: 1.

Whether the CBE used the Complainant ’ s personal information in contravention of the Freedom of Information and Protection of Privacy Act , RSA 2000, c F-25 [ FOIP Act ]? 2. Whether the CBE disclosed the Complainant ’ s personal information in contravention of the FOIP Act ? 3.

Whether the CBE failed to protect the Complainant ’ s personal information in contravention of the FOIP Act ? [ 6 ] In her decision, the Adjudicator found that the CBE improperly used and “ initially disclosed ” the Complainant ’ s information contrary to the FOIP Act , but did not disclose or fail to protect the Complainant ’ s personal information in contravention of that Act. The Adjudicator, beyond the declaration, ordered the CBE to stop using and disclosing personal information in that manner.

The substance of the decision sought to be reviewed is found at paragraph 104 of the Adjudicator ’ s decision: I find that the Public Body [the CBE] used and initially disclosed (on its own motion) the Complainant ’ s personal information in contravention of

Part 2 of the FOIP Act . I order the Public Body to stop using and disclosing personal information in this manner. The Public Body may comply with this order by providing training to staff concerning the appropriate management of personal information in personnel files. [ 7 ] The CBE was further ordered to notify the Adjudicator and the Complainant, in writing within 50 days, giving a description of the steps the CBE has taken to comply with the order. [ 8 ] On January 17, 2012, the CBE sent a letter to the Privacy Commissioner confirming it complied with the Adjudicator ’ s order.

It noted that the circumstances resulting in the complaint were “ extraordinary ” and that “ no personal information has been used in this manner before or since this occurrence in 2007. ” The letter explains that there has been a change of administration and new training protocols at the CBE since the matter giving rise to the 2007 complaint arose. [ 9 ] On January 18, 2012, the CBE filed an originating application seeking judicial review of the Adjudicator ’ s decision. On August 30, 2012, the respondent Privacy Commissioner filed an application seeking to dismiss, as moot, the application for judicial review.

Positions of the parties Privacy Commissioner [10] In support of its position that the application for judicial review is moot, the Privacy Commissioner submits that the CBE hascomplied with the order and undertaken organizational and training changes to better comply with the FOIP Act.

The PrivacyCommissioner argues that there is little or no likelihood of the event recurring and submitted evidence of a letter it sent to the CBE,indicating the matter was concluded and no further action would be taken. [11] The Privacy Commissioner argues that only declaratory relief is available and nothing is left that affects the practical rightsof the parties.

It says that if the matter were returned to the Privacy Commissioner, it would be at a loss as to what it would decide,because the CBE has already done everything the Privacy Commissioner would expect. [12] Therefore, the Privacy Commissioner submits that the issue is moot and, since there is only a very limited likelihood ofrecurrence, there is no justification for a hearing of this matter. Calgary Board of Education [13] The CBE argues that the application for judicial review is not moot and that a live issue exists between the parties.

It submitsthe finding that the CBE improperly used personal information, contrary to the FOIP Act, leads to that conclusion. It further argues thatAdjudicator’s order continues to impact its use of human resources files. [14] In light of the continuing order, the CBE argues that it would face further jeopardy should it challenge the Adjudicator’sorder in similar circumstances.

Then, the CBE argues, it would have to answer to a complaint alleging both a breach of the FOIP Act andthe failure to comply with the Adjudicator’s order. [15] If the matter is found to be moot, the CBE argues that the judicial review should still proceed. The CBE points out that theAdjudicator is not a lawyer, but addressed a question of law. Further, the CBE submits that the issue raises an important adversarialcontext because the CBE has thousands of employees - giving rise to these types of issues.

It says it needs a decision from this Court toprovide guidance on how it can use such documents in discipline, termination, hiring and other decisions.

Law [16] The parties agree on the law to be applied, disagreeing only on how the law should be applied to the facts. [17] Five cases were submitted to the court: Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342[Borowski]; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654[ATA]; Muskwachees Ambulance Authority Ltd v Canadian Union of Public Employees, Local 3197, 2007 ABQB 683, 436 AR 13[CUPE]; Wiebe v Labour Relations Board (Alta), 2001 ABCA 192, 281 AR 362 [Wiebe]; and Bonsma v Information and PrivacyCommissioner (Alta), 2012 ABQB 294, 537 AR 393 [Bonsma]. [18] ATA was cited for the authority of the court to exercise discretion in declining judicial review. [19] Borowski, a decision of the Supreme Court of Canada, sets out a two step test to determine whether a challenge for mootnesswill succeed.

CUPE, Wiebe and Bonsma demonstrate how the Borowski test has been applied.

[20] Step one of the Borowski test is the determination of whether a live issue remains between the parties or whether the matteris indeed moot: Borowski at 353. [21] At 354-55, Justice Sopinka canvases several situations where there may once have been a live controversy, but the matter hasfor some reason become moot: the issue of a legislative assembly member’s participation rights when the legislative assembly hasotherwise been dissolved; a challenge to legislation which has been repealed; where an Appellant has agreed to pay the Respondent’sdamages won at trial and the costs of the appeal; an application for an injunction against striking workers where the strike has ended; thedeath of a party to a parole hearing or hearing on a traffic offence; and the inapplicability of a statute to the party challenging it. [22] Counsel drew attention to Borowski at 355, where Maltby v Saskatchewan Attorney General (1984), (SKCA), 34 Sask R 177, 10 DLR (4th) 745 (CA) [Maltby] is cited.

Maltby is a decision of the Saskatchewan Court of Appeal. However,there is more recent reasoning from the Alberta Court of Appeal eclipsing Maltby, which I will discuss below. [23] Justice Moen in CUPE at para 9 provides helpful guidance in suggesting that a case is moot when it does not affect the“practical rights of the parties and which is instead hypothetical or theoretical”.

Practical rights are juxtaposed against the hypothetical ortheoretical. [24] The second step in the Borowski test is that, if no live issue exists between the parties - that is, the issue is moot, whether thecourt should exercise its discretion to hear or to decline to hear the matter: Borowski at 358. In making that decision, the court must referto the underlying context of the adversarial system (358-60) and the need for judicial economy (360-61). Further, the court must remainaware of its proper law-making function and avoid intruding into legislative work: 362-63.

Application [25] The first decision I must make is whether the matter is moot. I begin by considering the application of the Borowski test inthe cases submitted. [26] In CUPE, the Alberta Labour Relations Board (“ALRB”) took jurisdiction over labour relations with an aboriginal employer.The employer sought judicial review of the ALRB’s determination that it had jurisdiction. The matter became moot when the employeesvoted against certification. In that case, if the ALRB’s decision on jurisdiction had been reversed, the same result was inevitable. [27] Wiebe is also a labour relations case.

Five employees unsuccessfully applied to the ALRB to decertify their union. Theemployees then unsuccessfully applied for judicial review at this Court. Finally, they appealed to the Court of Appeal. In the meantime,the ALRB decertified the union. The Court of Appeal refused to hear the appeal on the basis that it was moot. At para 9 of the Court ofAppeal’s decision: In our view, this appeal is moot. The five employees have got what they wanted (decertification), and the substantive dispute is over.Their rights are no longer in issue.

Were we to hear the appeal on the merits, our judgment could not lead to the union local'sdecertification or recertification for these employees. Nor could it open any road (previously closed) for the Board to do either thing. [28] In Bonsma, Justice Ross found an application for judicial review to be moot. In that case, the applicant was successful beforethe Privacy Commissioner, but appealed the ruling nonetheless, seeking stronger guidance by the Privacy Commissioner that wouldindicate the office could not be used to delay disclosure of information.

At para 18, Justice Ross found that the “concrete and tangibledispute” between the parties disappeared when the applicant received the relief sought. [29] In Borowski itself, the issue found to be moot was the question of the validity of certain criminal code provisions struck downin R v Morgentaler, (SCC), [1988] 1 SCR 30.

[ 30 ] None of these cases exemplify the type of situation that exists in this case. [ 31 ] While the Privacy Commissioner encourages me to find that this Court in Bonsma found declaratory relief to be unavailable in these circumstances, I cannot agree that the finding in Bonsma was that broad. [ 32 ] Justice Marceau has given guidance in a series of decisions styled Trang v Alberta (Edmonton Remand Centre) . The underlying case concerned the treatment of the applicants while in detention at the Edmonton Remand Centre.

Through this case, both this Court and the Alberta Court of Appeal have given useful guidance on when an issue is moot.

In that case, seeking declaratory relief was: 1. not moot when applicants had been released from remand: 2001 ABQB 884 at para 3 , 304 AR 22 . 2. not moot when the applicants ’ criminal charges had been stayed: 2004 ABQB 497 at para 53 , 360 AR 133 , aff ’ d 2005 ABCA 66 at para 5 , 363 AR 167 . 3. moot when an applicant had been deported and his charges stayed: 2002 ABQB 357 at para 8 , 53 WCB (2d) 477 . 4. moot when an applicant died during the proceedings: 2006 ABQB 834 at para 8 , 407 AR 328 , balance of judgment rev ’ d on other grounds 2007 ABCA 263 at para 8 , 412 AR 215 . [ 33 ] These decisions show that seeking declaratory relief alone will not make an application moot.

Further, the question of whether there is a live controversy and the potential for a decision that will have some meaningful effect on one or more of the parties exists on a continuum. This is consistent with Justice Moen ’ s remarks, discussed earlier, which refer to a consideration of the practical against the hypothetical or theoretical in determining what is moot.

To that I add that the context in which judicial remedies are granted must be considered; remedies are generally issued after events have unfolded. [ 34 ] Extending the Privacy Commissioner ’ s argument to its logical extreme, the whole matter would have been moot even before the Adjudicator ’ s decision was released; on the evidence, the CBE had changed its protocols prior to the Adjudicator ’ s decision. Should the Privacy Commissioner have refused to hear the complaint in the first instance as, it now submits, it would have expected nothing more than that which the CBE had already done.

I do not accept that it was moot for the Privacy Commissioner to consider the complaint. [ 35 ] In these circumstances, the case is not moot. The determination of whether the CBE violated privacy legislation has a meaningful impact on it. Relief may be declaratory in nature, but that is consistent with the adjudication of matters after they have happened. Further, the CBE is subject to an order of the Privacy Commissioner. Without a successful challenge, it must abide by both that order and the FOIP Act . The CBE argues that the order does not reflect the law in the FOIP Act .

The CBE must be able to challenge the order, but to do so in a collateral attack would put the CBE in additional jeopardy for failing to comply with the order. Our legal system expects that parties will abide by orders unless and until they are successfully, and directly , challenged. Conclusion and costs [ 36 ] The application by the Privacy Commissioner is dismissed. [ 37 ] If the parties cannot agree on costs, written submission of up to two pages each may be submitted to me within 30 days of this decision being signed.

Heard on the 4 th day of October, 2012. Dated at the City of Calgary, Alberta this 27 th day of March, 2013. B.L. Veldhuis J.C.Q.B.A. Appearances: G.S. Solomon, Q.C. For the Applicant on this application M.D. Ford, Q.C. For the Respondent on this application