The Yukon Medical Council (the “Council”) was successful in its appeal from a decision holding it to be “an agent of the government of the Yukon” and, therefore, subject to the jurisdiction of the Privacy Commissioner. The Court of Appeal held that the Council was free from interference or control by the Yukon government in the exercise of its powers and, therefore, could not be said to be a “public body” within the meaning of the Access to Information and Protection of Privacy Act, S.Y. 1995, c. 1.

Administrative law – Freedom of information and protection of privacy – Privacy Commissioner – Jurisdiction – Public body – Definition – Physicians and surgeons – Governance

Yukon Medical Council v. Yukon (Information and Privacy Commission), [2002] Y.J. No. 82, Yukon Territory Court of Appeal, August 20, 2002, Finch C.J.Y.T., Donald and Low JJ.A.

The Council appealed the decision of the Supreme Court of the Yukon Territory dismissing its petition for judicial review. The Supreme Court had affirmed the decision of the Privacy Commissioner in which he held that he had jurisdiction over the Council, as a “public body”, to conduct an enquiry into the right of a physician to have access to records in the possession or control of the Council for which it refused access. The issue on appeal was whether the chambers judge erred in holding that the Council was “an agent of the government of the Yukon”, and therefore a public body subject to the jurisdiction of the Privacy Commissioner.

The court reviewed the cases referred to by the chambers judge on this issue, including Halifax v. Halifax Harbour Commissioners, [1935] 1 D.L.R. 657 (S.C.C.) and Metropolitan Meat Industry Board v. Sheedy and others, [1927] A.C. 899 (P.C.). The Court found that the theme running through these cases is that the most important consideration in determining whether a statutory body is an agent of government is the extent to which the power conferred on the body by statute may be exercised by that body autonomously, and without consultation, supervision or control by a Minister or other government official. The court noted that, although the constitution, structure and management of the statutory body are relevant to determining the nature and scope of the body’s power, it is the extent or absence of control over the body’s function that determines whether it acts in the capacity of a government agent.

The court reviewed the function and purpose of the Council and found that it has sole jurisdiction over the registration, licensing and discipline of the medical profession in the Yukon. The court noted that these powers affected not only the practice of medicine in the Yukon but also the right of individuals seeking to practice their art and to earn their livelihood by doing so. The court found that in the exercise of all of these powers, the Council is free of any interference or control by the Yukon government. The Council does not report to any Minister or government official as to the manner in which it exercises its powers, or the decisions it takes. The court disagreed with the approach and conclusion of the chambers judge and held that it is not whether the aspects of Crown control outweigh the Council’s independent exercise of discretionary powers that was central, but rather, whether those administrative controls limit, impair or restrict the exercise of the statutory powers conferred on the Council so as to make its acts those of the government. The court held that the Council is clearly an independent body and not an agent of the Crown and was, therefore, not a “public body” within the meaning of the Access to Information and Protection of Privacy Act. Therefore, the Privacy Commissioner was without jurisdiction to continue his enquiry. In the result, the appeal by the Council was allowed.

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