BRIAN PATRICK DOYLE Applicant v. HUMAN RESOURCES AND SKILLS, 2011 FC 471

Federal Court Cour fédérale Date: 20110418 Docket: T-1080-10 Citation: 2011 FC 471 Ottawa , Ontario , April 18, 2011 PRESENT: The Honourable Mr. Justice Barnes BETWEEN: BRIAN PATRICK DOYLE Applicant and HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA Respondent TRANSCRIPT OF REASONS Let the attached version of the transcript of my Reasons for Judgment delivered orally from the bench at Charlottetown, Prince Edward Island, on April 6, 2011, be filed to comply with

section 51 of the Federal Courts Act, RS, 1985, c F-7 . “ R. L. Barnes ” Judge Docket: T-1080-10 IN THE FEDERAL COURT OF CANADA BETWEEN: BRIAN PATRICK DOYLE

APPLICANT, -and- HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA RESPONDENT. BEFORE: The Honourable Mr. Justice Barnes PLACE: Charlottetow n, Prince Edward Island DATE: April 6, 2011 APPEARANCES: Brian Patrick Doyle, on his own behalf Corinne Bedford, on behalf of the Respondent --- TRANSCRIPT --- Court Registrar: Hélène Laforge 564, Route 280, Dundee, New Brunswick E8E 1Z1, tel or fax: (506) 826-1115 TABLE OF CONTENTS WITNESS PAGE -Oral reasons 3-14 ITEMS MARKED AS EXHIBITS No items were marked during this judicial review.

***Please note that words in quotation marks “ ” are words that either are not part of the English language or are words that are not agreed properly. ***Also note that a word followed by (sic) notes an obvious error by the speaker. ORAL REASONS RENDERED BY Mr. JUSTICE BARNES: Please be seated. Thank you for your patience. Mr. Doyle, let me begin by noting how respectable a job you did presenting your case today.

You did a much better job than the vast majority of self-represented litigants that come before this Court, and actually, I want to compliment both of you for the efficiency with which you presented your cases this morning, and for the tone of the presentations. I always appreciate it when despite the fact that you are in an adversarial setting, the tone of the submissions is gracious and polite. So, thank you for that. So these are my reasons: This is an application by Brian Doyle under

section 41 of the Privacy Act .

That provision provides for the following relief on an application to the Federal Court: “Any individual who has been refused access to personal information requested under subsection 12(1) may, if a complaint has been made to the Privacy Commissioner in respect of the refusal, apply to the Court for a review of the matter within 45 days after the time the results of an investigation of the complaint by the Privacy Commissioner are reported to the complainant under subsection 35(2) or within such further time as the Court may, either before or after the expiration of those 45 days, fix or allow.” -- As read Mr.

Doyle has concerns about four types of documents that the Respondent has either not produced or has belatedly produced. The first concerns page 2 of his resume, which was not initially produced by the Respondent but was located later and sent to him. He thinks it odd that the version of this page presented to him is different than the other pages which were produced which contained unique fax transmission information and he speculates that interview notes may have been removed from the page that he did receive on the later occasion.

The second concern involves interview notes that he would have expected in his file that were not, in this case, produced beyond the notes found on the face of the reference forms. Thirdly, he expresses concern about the Respondent’s failure to transfer the reference check scores to the master scoring sheet, which he speculates may have been caused by another undisclosed reference check. Fourth, he is concerned about a reference list that he says he left at the interview. This document was never produced by the Respondent, although he acknowledges that one of the references he listed was contacted.

The Privacy Commissioner found that Mr. Doyle’s complaint was well-founded with respect to page 2 of his resume, but thatthe Respondent’s explanations for the other documents were adequate in the circumstances and the complaint therefore stood resolved. Mr. Doyle has also expressed concerns about the diligence of the Privacy Commissioner’s investigation into his complaint. The Privacy Commissioner is not a party to this proceeding, and I am not able to make any order concerning the mannerabout which the Commissioner conducted her investigation into Mr. Doyle’s complaint.

Even if the Commissioner was a party to this proceeding, there is no basis for any order to issue concerning one of herinvestigations carried out in good faith. She fulfils the role of an Ombudsman and does not make decisions that are open to being judicially reviewed in this Court. My authority is limited under

section 41 of the Privacy Act to an examination of documents that the Respondent is refusing toproduce or perhaps hiding from disclosure. I have evidence under oath that diligent searches were conducted for the material that Mr. Doyle says he had produced orshould have been in the Respondent’s file, according to his expectations at least. While I accept that Mr.

Doyle’s list of references has probably gone missing, that page 2 of his resume had gone missing for atime and that some interview notes may have gone missing, I can see nothing to support an inference that this situation represents sometype of misfeasance or a constructive withholding of material by the Respondent. There would be no obvious motive for anyone in the Department to get rid of information that Mr. Doyle had produced, andas Mr. Doyle acknowledges, a finding of some ulterior motive would only be speculation. I unreservedly accept the affidavit of Ms. Villeneuve and the truthfulness of its contents.

It is inconceivable to me thatanyone in her position would swear a false affidavit in a matter such as this. What we are left with at most is a situation where some documents from an employment competition interview may havegone missing, and despite the efforts of the Respondent to locate them, they have not resurfaced. On the other side, we have Mr. Doyle expressing a suspicion or as he put it, “it’s very odd”. What is really odd is the ideathat what happened may have had some ulterior purpose behind it. Mr. Doyle did quite well in the competition.

If someone was out to derail his career in the federal public service, it is astrange way to go about it. In my eye, this case is indistinguishable from the decision of this Court in Blank vs. Canada [2000] II, 16437, whereJustice Muldoon was dealing with an equivalent provision in the Access to Information Act. At paragraphs 9 to 11 in that decision, he held as follows: “Section 41 of the Act states:

Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of that refusal, apply to the Court for a review of the matter ... This indicates, as does the wording of sections 49 and 50, that judicial review is available only where there is an actual or constructive refusal of access continuing at the time of the hearing in Court. Without a refusal, the Court lacks the jurisdiction to grant a remedy, since the only one available is that of an order to disclose.

Constructive or “deemed” refusals were discussed in X. v. Canada (Minister of National Defence) . Mr. Justice Strayer stated that a refusal of access is a condition precedent to an application under those sections and the only matter to be remedied by the Court where it finds for the applicant ... the only remedy the Court can give is to order disclosure and such an order is not available if disclosure has already taken place.

In assessing the validity of the claim, Strayer, J. went on to state: Unless there is a genuine and continuing refusal to disclose, and thus an occasion for making an order for disclosure or its equivalent, no remedy can be granted by this Court ... It is not the role of the Court to immerse itself in the reasonability of the conduct of the internal affairs of a government department in matters of access to information, except where a genuine and continuing refusal or deemed refusal of access can be demonstrated.

In concluding, the Court found the application to be “frivolous and vexatious because its futility should have been amply evident to the applicant”. In further consideration of the refusal issue, the jurisprudence asserts that where an applicant claims that documents are being withheld, there must exist some evidence of the fact beyond mere suspicion. In Creighton v.

Canada (Superintendent of Financial Institutions) , this Court stated with regard to acting on suspicion: There may be a suspicion in his mind - and it may be a reasonable suspicion - that there could be more material in the hands of the Respondent, but ... the Court simply cannot operate on suspicion. Suspicion is something which is communicated to a good investigator who turns up evidence. The Court will act on evidence but not on suspicion.” -- As read So in conclusion, there is nothing in the evidence before me to establish that the Respondent is deliberately withholding material from Mr.

Doyle or that the searches it has conducted to date represent some breach of a legal duty under the Act. Documents sometimes go missing, and apparently they did in this situation, but I have no authority under

section 41 to make an order in these circumstances. The application is therefore dismissed. The Respondent is entitled to an award of costs because as previously mentioned, ordinarily costs follow the event. Mr. Doyle argues that he was forced into the Federal Court by the Respondent stonewalling him. I don’t accept that. We all have choices, and this case is no different. The Court is not here to judge the good faith recording-keeping practices of the Respondent. That is not my role under

section 41, and to the extent that this application involved complaints of that type or concerns about the role of the Privacy Commissioner, it was ill-conceived. The Respondent is entitled to a reasonable award of costs to offset in part the burden that would otherwise fall on the taxpayers of Canada from this litigation.

I have looked at the decision in the Blank case that counsel for the Respondent has provided me. The award given in Blank is higher than would be appropriate here. Justice Muldoon, in the original decision, awarded what he said were moderate costs, which in the later assessment decision given to me were taken to mean costs under column 3. I’m not sure that is what was intended by Justice Muldoon, but the assessment officer went on to say in that case that it involved complex factual issues, and it’s apparent that it went on for a considerable period of time.

This in comparison is a relatively simple case, albeit with some out-of-pocket expenses that perhaps are a little more than the norm. I’m going to award costs and disbursements in this case to the Respondent in the amount of $1,500. Those are my reasons. Thank you very much for your submissions today, and that brings this proceeding to a conclusion, unless there are further questions from either one of you. MS. BEDFORD: No, My Lord. Thank you very much. MR. DOYLE: No, Your Honour. Thank you for your time. REGISTRAR: This special sitting of the Federal Court in Charlottetown is now closed.

HEARING ADJOURNED AT 12:40 P.M. FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1080-10 STYLE OF CAUSE: DOYLE v HUMAN RESOURCES AND SKILLS DEVELOPMENT CANADA PLACE OF HEARING: Charlottetown, PEI DATE OF HEARING: April 6, 2011

TRANSCRIPT OF REASONS: BARNES J. DATED: April 18, 2011 APPEARANCES : Brian Patrick Doyle FOR THE APPLICANT (ON HIS OWN BEHALF) Corrine Bedford FOR THE RESPONDENT SOLICITORS OF RECORD : Brian Patrick Doyle Charlottetown , PEI FOR THE APPLICANT (ON HIS OWN BEHALF) Myles J. Kirvan Deputy Attorney General of Canada Halifax , NS FOR THE RESPONDENT