Could lose jurisdiction over numerous inquiries after court enforces statutory time limitations
The office of Alberta’s privacy commissioner could lose its jurisdiction over a large number of cases in its backlog after the province’s top court ruled it must meet specific legislative timelines to hear inquiries.
The ruling arose from a 2005 privacy complaint from 10 teachers who dropped out of the Alberta Teachers’ Association (ATA) but had their names published in the ATA newsletter. The teachers requested an inquiry by the Office of the Information and Privacy Commissioner (OIPC) in September 2006.
On March 13, 2008 — more than 17 months after the request — an adjudicator found the ATA had violated Alberta’s Personal Information Protection Act (PIPA) by disclosing the teachers’ personal information.
However, in October 2008, the Alberta Court of Queen’s Bench overturned the decision on the grounds the OIPC didn’t reach its decision within timelines defined in PIPA, which stipulates an inquiry must be completed within 90 days of the OIPC receiving a written request.
The act allows for an extension if the OIPC notifies everyone involved of the extension and provides a completion date. The court ruled on the time limitation despite the fact the ATA had appealed the adjudicator’s decision on other grounds.
The OIPC appealed, arguing a breach of the time requirement did not warrant a loss of its jurisdiction on the inquiry and the Court of Queen’s Bench should not have ruled on the time issue since it wasn’t a basis of the appeal. The OIPC also said it notified the teachers and the ATA of the upcoming inquiry in writing in February 2007 and the extension in August 2007.
The Alberta Court of Appeal, in a 2-1 decision, upheld the dismissal of the adjudicator’s findings because of the breach of legislative timelines. The February and August 2007 notifications of the parties were issued when the 90-day limit had already been surpassed, it found. Even if the letters were timely, the extension in this case wasn’t appropriate because the OIPC could not provide a reasonable explanation for the extra time required.
The time limitation was meant to facilitate a timely resolution of privacy claims and timeliness is important to the public interest, found the court. There had to be a balance between timeliness and allowing extensions, so there must be legitimate reasons to delay a case and these reasons could be subject to an appeal, said the court.
“Blanket or routine extensions seem unlikely to be regarded as reasonable if they cannot also be justified in the specific circumstances of the case,” said the appeal court.
The decision could affect a large number of cases and allow organizations to use delay tactics to derail inquiries, particularly since the OIPC would need to double its staff to meet the timelines, said Frank Work, Alberta’s information and privacy commissioner, in a release following the decision.
“Clearly, those kinds of resources are not available in these times,” he said.
The consequences of the decision are “really bad” for Albertans and for the OIPC, he said.
“This decision may have dire implications for every tribunal in this province which has stipulated timelines,” said Work. “There should be a lot of concern on that front.”
He also expressed concern that, as a result of the ruling, “likely hundreds of Albertans” will lose the privacy remedies they thought they received in response to their complaints under PIPA.
“All the effort and resources put into pursuing complaints and preparing submissions has gone for naught,” he said.
The OIPC will be seeking leave to appeal from the Supreme Court of Canada, said Work, who plans to ask the legislative assembly to amend the province’s privacy laws as soon as possible.
