ANTON OLEINIK Applicant v. THE PRIVACY COMMISSIONER OF CANADA, 2013 FC 44

Date: 20130117 Docket: T-272-12 Citation: 2013 FC 44 Toronto, Ontario, January 17, 2013 PRESENT: Kevin R. Aalto, Esquire, Prothonotary BETWEEN: ANTON OLEINIK Applicant and THE PRIVACY COMMISSIONER OF CANADA Respondent REASONS FOR ORDER AND ORDER [1] This motion to strike engages the processes and procedures mandated in the Privacy Act RSC 1985 c P-21 (the Act). Thecase arises from a number of complaints made to the Office of the Privacy Commissioner (OPC) and related legal proceedingscommenced by the Applicant, Dr.

Oleinik. [2] The Notice of Application that OPC seeks to strike seeks two substantive forms of relief, as follows: 1. An order in the nature of certiorari quashing the Report of findings issued by the OPC with regard to Dr. Anton Oleinik’scomplaint against the Social Sciences and Humanities Council of Canada under the Privacy Act (OPC’s File No. 7100-011365); 2. An order directing the OPC to give Dr. Anton Oleinik access to his personal information in the OPC’s custody and control as perhis two access to personal information requests (OPC’s File Nos.

P-2011-00012/AR and P-2011-00011/TL). [3] The Privacy Commissioner (OPC) argues that this Application is bereft of any chance of success and should be struck. Tothat end, OPC relies upon the standard adopted in the well known case of David Bull Laboratories (Canada) Inc v Pharmacia Inc, (FCA), [1995] 1 FC 588 (CA), wherein the Federal Court of Appeal noted as follows: 15 For these reasons we are satisfied that the Trial Judge properly declined to make an order striking out, under Rule 419 or bymeans of the “gap” rule, as if this were an action.

This is not to say that there is no jurisdiction in this Court either inherent or throughRule 5 by analogy to other rules, to dismiss in

summary manner a notice of motion which is so clearly improper as to be bereft of anypossibility of success (See e.g. Cyanamid Agricultural de Puerto Rico, Inc. v. Commissioner of Patents et al. (1983), 74 C.P.R. (2d) 133(F.C.T.D.); and the discussion in Vancouver Island Peace Society v. Canada, (FC), [1994] 1 F.C. 102 (T.D.), at pp.120-121). Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as tothe adequacy of the allegations in the notice of motion.

[emphasis added] [4] For the reasons that follow, I agree that this Application is “bereft of any possibility of success” and must be struck. Quashing OPC’s Report on the Applicant’s complaint against SSHRC [5] As excerpted above, in the first of two heads of relief, Dr. Oleinik seeks by this Application to quash the OPC’s non-bindingreport of findings regarding his complaint against the Social Sciences and Humanities Council of Canada {SSHRC). This relief cannotbe granted; moreover, it is a patent abuse of process given the history of Mr.

Oleinik’s proceedings on this issue in this Court. [6] Only a brief background is necessary. Dr. Oleinik is an Associate Professor at Memorial Univers ity in Newfoundland andLabrador. Apparently, in 2007 he applied unsuccessfully for a research grant from the SSHRC. He then sought access to his personalinformation maintained by SSHRC. Subsequently, because he was not satisfied with the responses received from SSHRC, he initiatedcomplaints to the OPC. As a result of the complaint to the OPC, a non-binding report of findings was issued by the OPC.

The ultimateconclusion of that non-binding report was that the complaint was not “well-founded.” That non-binding report of the OPC was thesubject of judicial review proceedings in this Court and by Order made November 7, 2011, by the Honourable Mr. Justice Rennie theapplication was dismissed: Oleinik v Canada (Privacy Commissioner), 2011 FC 1266 [Oleinik 1]. A subsequent appeal to the FederalCourt of Appeal was dismissed from the bench on September 4, 2012: Oleinik v Canada (Privacy Commissioner), 2012 FCA 229. [7] In Oleinik 1, Justice Rennie dismissed Dr.

Oleinik’s application for judicial review with the following strong words: 7. As Justice Tremblay-Lamer stated in Keïta c. Canada (Ministre de la Citoyenneté & de l'Immigration), 2004 FC 626 (F.C.) atpara 20: "The validity of the [Privacy] Commissioner's recommendations is not subject to the Court's powers of review. The precedentson this point are clear and ample." In reaching this conclusion Justice Tremblay-Lamer relied on the decision of the Federal Court ofAppeal, in Canada (Attorney General) v. Bellemare, (FCA), [2000] F.C.J. No. 2077 (Fed.

C.A.) at paras 11-13,which involved allegations lodged against the Information Commissioner similar to those lodged by the applicant herein against thePrivacy Commissioner. Noël J.A. held:

Section 41 does not provide for a recourse against the Information Commissioner (Wells v. Canada (Minister of Transport), T-1729-92,April 19, 1993 [(1993), 48 C.P.R. (3d) 312 (Fed. T.D.)]. ... In short, the Court has no jurisdiction, pursuant to

section 41, to conduct a judicial review of the Information Commissioner's findingsand recommendations. It was therefore not open to the motions Judge to allow the application for judicial review to continue. 8. The applicant's proper recourse was to bring an application pursuant to

section 41 of the Privacy Act, naming the SSHRC as therespondent. At a minimum, this application should be supported by some objective evidence to support the inference that personalinformation was being withheld. In this case, despite being advised clearly by the OPC in its letter of March 30, 2010 that his right ofrecourse lay in

section 41 and the de novo review of the SHRCC response, and after subsequently being advised to the same effect bycounsel for the OPC, the applicant persisted in pursuit of recourse under

section 18.1 of the Federal Courts Act challenging the OPCrecommendations. In consequence, the applicant runs squarely up against the jurisprudence of the Court of Appeal and of this Court. 9. The applicant cannot seek judicial review of the OPC's non-binding report to, in essence, challenge the SSHRC. He must addressthe decision making body itself, not collaterally or indirectly through the OPC. This is the procedure contemplated by Parliament. [emphasis added] [8] Despite this caution, Dr. Oleinik persists in his challenge in this Court against the OPC’s non-binding report.

This part of theApplication is an abuse of process, will never succeed, and must be struck. It will also have an impact on the cost consequences of thismotion. Mandating the OPC to Disclose

[ 9 ] OPC argues that the second head of relief sought in this Application also cannot be granted because of the jurisprudence in administrative law which requires that an applicant pursue all available administrative remedies before seeking judicial review.

OPC relies upon the articulation of this principle in Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 [ CB Powell ] , in which the Federal Court of Appeal noted at paragraph 31: [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews.

All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court.

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. [ 10 ] Based on the record before me, I agree that Dr. Oleinik has not pursued the administrative remedies provided by the Act and for that reason the remainder of this Application would not succeed and must also be struck. [ 11 ] Some further background is necessary to understand how Dr. Oleinik has not exhausted the administrative remedies available to him.

While the earlier proceedings before this Court were ongoing, Dr. Oleinik made an Access to Information Request under the Act for all documents in the custody and control of the OPC containing his name, including information stored on the OPC’s backup email server. That request was received by OPC on December 2, 2011 (the December 2011 Complaint). [ 12 ] A second Access to Information Request was made by Dr.

Oleinik for all documents created by the OPC in the course of the investigation into his complaint against SSHRC (the January 2012 Complaint). [ 13 ] In response to the December 2011 Complaint, the OPC disclosed a number of documents to Dr. Oleinik but withheld certain information pursuant to sections 22.1 , 26 and 27 of the Act . In addition, certain information was withheld pursuant to sections 3 and 12(1) of the Act as not being the “personal information” of Dr. Oleinik.

OPC also indicated that it did not conduct a search of its backup email servers as it did not consider this information “reasonably retrievable” within the meaning of section 12(1)(

b) of the Act. [ 14 ] In order to give context to this response by the OPC it is useful to set out certain of those specific provisions of the Act : Right of access 12.

(1) Subject to this Act , every individual who is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act has a right to and shall, on request, be given access to (

a) any personal information about the individual contained in a personal information bank; and (

b) any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution. Droit d’accès 12.

(1) Sous réserve des autres dispositions de la présente loi, tout citoyen canadien et tout résident permanent au sens du paragraphe 2(1) de la

Loi sur l’immigration et la protection des réfugiés ont le droit de se faire communiquer sur demande :

a) les renseignements personnels le concernant et versés dans un fichier de renseignements personnels;

b) les autres renseignements personnels le concernant et relevant d’une institution fédérale, dans la mesure où il peut fournir sur leur localisation des indications suffisamment précises pour que l’institution fédérale puisse les retrouver sans problèmes sérieux.

[…] Information obtained by Privacy Commissioner 22.1

(1) The Privacy Commissioner shall refuse to disclose any personal information requested under this Act that was obtained or created by the Commissioner or on the Commissioner’s behalf in the course of an investigation conducted by, or under the authority of, the Commissioner. Exception

(2) However, the Commissioner shall not refuse under subsection (1) to disclose any personal information that was created by the Commissioner or on the Commissioner’s behalf in the course of an investigation conducted by, or under the authority of, the Commissioner once the investigation and all related proceedings, if any, are finally concluded. […] Information about another individual 26. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) about an individual other than the individual who made the request, and shall refuse to disclose such information where the disclosure is prohibited under

section 8. Solicitor-client privilege 27. The head of a government institution may refuse to disclose any personal information […] Renseignements obtenus par le Commissaire à la protection de la vie privée 22.1

(1) Le Commissaire à la protection de la vie privée est tenu de refuser de communiquer les renseignements personnels demandés en vertu de la présente loi qui ont été créés ou obtenus par lui ou pour son compte dans le cadre de toute enquête faite par lui ou sous son autorité. Exception

(2) Toutefois, il ne peut s’autoriser du paragraphe (1) pour refuser de communiquer les renseignements personnels créés par lui ou pour son compte dans le cadre de toute enquête faite par lui ou sous son autorité une fois que l’enquête et toute instance afférente sont terminées. […] Renseignements concernant un autre individu 26.

Le responsable d’une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1) qui portent sur un autre individu que celui qui fait la demande et il est tenu de refuser cette communication dans les cas où elle est interdite en vertu de l’article 8. Secret professionnel des avocats 27. Le responsable d’une institution fédérale peut refuser la

requested under subsection 12(1) that is subject to solicitor-client privilege. communication des renseignements personnels demandés en vertu du paragraphe 12(1) qui sont protégés par le secret professionnel qui lie un avocat à son client. [ 15 ] In response to the January 2012 Complaint, the OPC replied on January 6, 2012, noting that it could not disclose any of the information requested by virtue of the provisions of

section 22.1 of the Act . That provision provides that the OPC cannot produce the information created by the OPC in the course of its investigation until the investigation and “all related proceedings, if any, are finally concluded.” It was one of the OPC’s positions that as the time period for bringing an Application to review the complaint against SSHRC had not yet expired, the information requested could not be released.

Pursuant to the provisions of the Act they took the position that they were justified in withholding the information and maintaining the position and that it was a matter to be determined first by another process involving the “Privacy Commissioner Ad Hoc ”. The responses from OPC to Dr. Oleinik’s December 2011 and the January 2012 Complaints noted that Dr.

Oleinik was entitled to file a complaint concerning the processing of his requests with the “Privacy Commissioner Ad Hoc ” and provided contact information for doing so. [ 16 ] It is useful at this juncture to describe the role of the Privacy Commissioner Ad Hoc . Pursuant to

section 59 of the Act the duties and responsibilities of the Privacy Commissioner can be delegated to a third party to allow for, in the words of counsel for OPC , “independent and impartial investigations into complaints against the Commissioner under the Act .” Apparently, the current Privacy Commissioner Ad Hoc is Mr. John H. Simms who has been delegated a majority of the Commissioner’s powers, duties and functions as set out in

section 29 to 35 and

section 42 of the Act in order to carryout this review function.

Section 59 reads as follows: Delegation by Privacy Commissioner 59.

(1) Subject to subsection (2), the Privacy Commissioner may authorize any person to exercise or perform, subject to such restrictions or limitations as the Commissioner may specify, any of the powers, duties or functions of the Commissioner under this Act except (

a) in any case other than a delegation to an Assistant Privacy Commissioner, the power to delegate under this section; and (

b) in any case, the powers, duties or functions set out in sections 38 and 39. Delegations of investigations relating to international affairs and defence

(2) The Privacy Commissioner may not, nor may an Assistant Privacy Commissioner, delegate (

a) the investigation of any Pouvoir de délégation 59.

(1) Sous réserve du paragraphe (2), le Commissaire à la protection de la vie privée peut, dans les limites qu’il fixe, déléguer les pouvoirs et fonctions que lui confèrent la présente loi ou une autre loi fédérale, sauf :

a) le pouvoir même de délégation , qui ne peut être délégué qu’à un commissaire adjoint;

b) les pouvoirs et fonctions énoncés aux articles 38 et 39, qui ne peuvent être délégués à quiconque. Affaires internationales et défense

(2) Le Commissaire à la protection de la vie privée ou un commissaire adjoint ne peuvent déléguer qu’à un de leurs collaborateurs choisis parmi quatre des cadres ou employés du

complaint resulting from a refusal by the head of a government institution to disclose personal information by reason of paragraph 19(1)(

a) or (

b) or

section 21, or (

b) the investigation under

section 36 of files contained in a personal information bank designated under

section 18 as an exempt bank on the basis of personal information described in

section 21 except to one of a maximum of four officers or employees of the Commissioner specifically designated by the Commissioner for the purpose of conducting those investigations. Delegation by Assistant Privacy Commissioner

(3) An Assistant Privacy Commissioner may authorize any person to exercise or perform, subject to such restrictions or limitations as the Assistant Privacy Commissioner may specify, any of the powers, duties or functions of the Privacy Commissioner under this Act that the Assistant Privacy Commissioner is authorized by the Privacy Commissioner to exercise or perform. commissariat et que le Commissaire désigne spécialement à cette fin la tenue des enquêtes suivantes :

a) les enquêtes portant sur les cas où le refus de communication de renseignements personnels est lié aux alinéas 19(1)

a) ou

b) ou à l’article 21;

b) les enquêtes prévues à l’article 36 et portant sur les dossiers versés dans les fichiers inconsultables classés comme tels en vertu de l’article 18 et contenant des renseignements personnels visés à l’article 21. Pouvoir de subdélégation de l’adjoint

(3) Un commissaire adjoint à la protection de la vie privée peut, dans les limites qu’il fixe, subdéléguer les pouvoirs et fonctions que lui délègue le Commissaire en vertu de la présente loi ou d’une autre loi fédérale. [ 17 ] The delegation document is set out in the motion record. The purpose of establishing a Privacy Commissioner Ad Hoc is intended to provide a mechanism for the independent and impartial investigations into complaints which may be made against the Commissioner. [ 18 ] Pursuant to paragraph 29(1)(

b) of the Act and the above-mentioned delegation of responsibilities, the Privacy Commissioner Ad Hoc “shall receive and investigate complaints . . . from individuals who have been refused access to personal information requested under subsection 12(1).” Because the OPC is itself listed as a “government institution” to which the provisions of the Act apply, the Privacy Commissioner Ad Hoc ’s mandate includes receiving and investigating complaints from individuals who have been refused access to personal information held by the OPC. [ 19 ] Thus, OPC takes the position that if Dr.

Oleinik was dissatisfied with the results or the responses to his December 2011 Complaint and January 2012 Complaint there was an available administrative remedy of which he could avail himself in these circumstances. [ 20 ] I also note that the clear wording of

section 41 of the Act similarly provides that an “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” [emphasis added]. Rather than pursue a complaint to be dealt with by the Privacy Commissioner Ad Hoc , Dr. Oleinik has pursued this judicial review application, contrary to the Act and administrative law jurisprudence.

[ 21 ] Dr. Oleinik raises a number of issues apart from opposing this motion generally. In particular, Dr. Oleinik argues that this motion should not be considered because it was filed outside the timeline for completing cross-examinations. Dr. Oleinik had sent written interrogatories to the OPC . This motion was brought after the interrogatories were sent. [ 22 ] The simple answer to this argument is that under Rule 221 (1) the Court may “at any time” order that a pleading be struck.

However, OPC argues that apart from this provision in the Rules the OPC has tried to avoid unnecessary expense by responding to the interrogatories. Further, OPC argues that it was not appropriate to bring the motion earlier because the appeal from Dr. Oleinik’s appeal upholding Justice Rennie’s decision was only released on September 4, 2012. Issues raised in that proceeding overlap with issues in this proceeding so finality in that proceeding was required before moving to strike this proceeding. There is also some issue raised about the ability to serve Dr.

Oleinik because of travel commitments relating to his teaching duties. However, it is not necessary to consider all of this as it is open to the Court on the motion of a party at any time to strike. [ 23 ] On the substance of the alternative remedy issue, Dr. Oleinik argues that he should not have to first pursue the available recourse to the Privacy Commissioner Ad Hoc because the Privacy Commissioner Ad Hoc is just that – ad hoc . Dr.

Oleinik refers to a report to Parliament of the Privacy Commissioner which refers to the lacunae in the statute that there is no independent oversight of production of documents under the Act which may be in the possession of the Privacy Commissioner. Thus, the Privacy Commissioner created the position of Privacy Commissioner Ad Hoc to fill this void. Dr. Oleinik argues that such an ad hoc process cannot be independent and therefore he has not pursued the administrative remedy of a complaint to the Privacy Commissioner Ad Hoc . [ 24 ] While Dr.

Oleinik makes a valid point that the Privacy Commissioner Ad Hoc is not a legislated position and may not be completely independent as the Privacy Commissioner Ad Hoc is appointed by the Privacy Commissioner not Parliament, nonetheless there is no evidence that the Privacy Commissioner Ad Hoc has not acted independently and carried out the delegated duties impartially.

While CB Powell , above, at paragraph 33 , recognizes that an alternative remedy plagued with bias would be reason to allow an application for judicial review despite that alternative remedy, it is trite to say that an allegation of bias is serious and must be proven with convincing evidence.

To reiterate, there is simply no convincing evidence of bias, whether institutional or personal on the record on this motion. [ 25 ] In all of the circumstances, given the discussion above, the decision of Justice Rennie and the Federal Court of Appeal, this application is bereft of any chance of success and must be struck without leave to amend. The Respondent is entitled to costs. [ 26 ] However, this does not mean that Dr.

Oleinik is without a remedy for any of the complaints he makes, as discussed above, there is a right of complaint to the Privacy Commissioner Ad Hoc for the OPC ’s refusal to disclose the information requested by him. From there, if necessary, there may be recourse to this Court. ORDER THIS COURT ORDERS that : 1. This application is struck out without leave to amend. 2. The Respondent is entitled to costs fixed and payable forthwith in the amount of $3000. “Kevin R. Aalto” Prothonotary

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-272-12 STYLE OF CAUSE: ANTON OLEINIK v. THE PRIVACY COMMISSIONER OF CANADA PLACE OF HEARING: St. John’s, Newfoundland and Labrador DATE OF HEARING: December 6, 2012 REASONS FOR ORDER: AALTO P. DATED: January 17, 2013 APPEARANCES : Dr. Anton Oleinik FOR THE APPLICANT Mr. Regan Morris Ms. Louisa Garib FOR THE RESPONDENT SOLICITORS OF RECORD :

Dr. Anton Oleinik Self-Represented FOR THE APPLICANT Legal Services Privacy Commissioner of Canada FOR THE RESPONDENT