During a judicial review of its own decision, the Privacy Commissioner for British Columbia (the “Commissioner”) was not permitted to argue the merits of its decision; however, it could explain the record and demonstrate that its decision was not patently unreasonable

Administrative law – Freedom of information and protection of privacy – Disclosure – Decisions of administrative tribunals – Privacy Commissioner – Standing in judicial review – Judicial review – Jurisdiction – Procedural requirements and fairness

British Columbia Teachers’ Federation v. British Columbia (Information and Privacy Commissioner), [2005] B.C.J. No. 2394, British Columbia Supreme Court, November 3, 2005, Garson J.

The Petitioners sought judicial review of Orders made by the Commissioner to disclose portions of records regarding an investigation into complaints about a teacher. A preliminary issue was raised by the Petitioners concerning the role in the proceeding of the Commissioner during a judicial review of his own decision. The Petitioners argued that the Commissioner’s standing was limited to 1) explaining the record of proceeding, 2) making submissions on the jurisdiction of the Commissioner; and 3) making submissions on the standard of review to be applied by the court on judicial review. The Commissioner, however, asserted that he should have full standing at the judicial review proceedings of his own Order as a means of ensuring a fully informed adjudication of the issues.

The court held that there was no authority for the proposition that the scope of a Tribunal’s submissions at a judicial review of its own decision was completely unfettered. The law in British Columbia did not permit a Tribunal to argue the merits of its decision upon judicial review. The court must therefore monitor what can often be a blurry line between arguing the merits of a decision and explaining the record. The line between permissible and impermissible argument by the Tribunal is drawn at the point in which the Commissioner defends the actual merits of his decision.

The court reviewed the issues sought to be argued by the Commissioner (without specifying them) and held that his submissions did not address the merits of the decision on each issue. Accordingly, the preliminary objection made by the Petitioners was dismissed.

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