Judicial Review Of Privacy Commissioner Findings – Toronto Tax Lawyer Comment

Daley v. Canada (Attorney General) - 2016 FC 1154 - Judicial Review of Privacy Commissioner Findings - Toronto Tax Lawyer Case Comment

Part II: Procedural Fairness Issue

The facts of the case and the issues before the Federal Court are discussed in detail by our experienced Toronto Tax Lawyers in Part I of this case comment. Part II will delve deeper into the reasons behind the Court's finding in Ms. Daley's favour.

Procedural Fairness

Procedural fairness complaints concern how the decision making body arrived at their decision while "substance" refers to what the decision actually was. To make a complaint you must be entitled to procedural fairness in the first place.

Judge made law is referred to as "common law" while legislation is referred to as "statute." In Canada common law can be overwritten by statute unless the statute is declared unconstitutional by courts. Under Canadian common law the duty of (procedural) fairness applies to decisions of public authorities that affect an individual's rights, privileges, or interests. The common law provides a presumption for procedural fairness.

To summarize, individuals affected by the decisions of public authorities are owed a duty of fairness unless statute explicitly gets rid of it. If the duty of fairness applies, the individual affected by the decision must be given notice and an opportunity to tell their side of the story.

The Breach in the Duty of Fairness

The Office of the Privacy Commissioner of Canada relied on case law in Ocean Port Hotel Ltd v British Columbia [2001 SCC 52] and argued that all principles of natural justice, including the duty of fairness, were ousted by statutory language in the Privacy Act. The Court examined the notice of intention to investigate provisions in the Privacy Act and came to the opposite conclusion. Section 31 of the Privacy Act states that "the head of the government institution concerned" must be notified of the intention to investigate the complaint and the substance of the complaint. Subsection 32(2) of the Privacy Act allows "the head of the government institution concerned" to respond to the complaint. The plain language of the statute states that certain persons must be notified and given the opportunity to make representations. The Court stated that the statute does not exempt the Office of the Privacy Commissioner of Canada from notifying or allowing third parties who may be affected by its decision to make representations.

This case is...