Administrative law – Decisions of administrative tribunals – Privacy commissioner – Adjudications – Freedom of information and protection of privacy – Disclosure – Completion of inquiry – Limitations – Extension of time – Judicial review – Compliance with legislation – Jurisdiction – Standard of review – Reasonableness simpliciter
Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association,  S.C.J. No. 61, 2011 SCC 61, Supreme Court of Canada, December 14, 2011, McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ
The Commissioner received complaints that the Alberta Teachers’ Association (“ATA”) had disclosed private information in contravention of the Alberta Personal Information Protection Act, SA 2003, c.P-6.5 (“PIPA”). At the time, s. 50(5) of PIPA provided that an inquiry must be completed within 90 days of the complaint being received unless the Commissioner notified the parties that he was extending the time period. The Commissioner took 22 months from the initial complaint before extending the estimated date of the conclusion of the inquiry. Seven months later, an adjudicator delegated by the Commissioner issued an order finding that the ATA had contravened the Act. The ATA applied for judicial review of the adjudicator’s order. In argument, the ATA claimed, for the first time, that the Commissioner had lost jurisdiction due to his failure to extend the period for the completion of the inquiry within 90 days of the complaint being received. The Chambers judge quashed the adjudicator’s decision on that basis. A majority of the Court of Appeal upheld the Chambers judge’s decision. The Commissioner appealed to the Supreme Court of Canada.
The majority of the Supreme Court of Canada allowed the appeal. The majority held that although the timeliness issue was not raised before the Commissioner or the adjudicator, the adjudicator had implicitly decided that providing an extension after 90 days did not automatically terminate the inquiry. The adjudicator’s decision was subject to judicial review on a reasonableness standard and, in the circumstances, her decision was reasonable. The majority held that the adjudicator’s order should be reinstated and the matter should be remitted to the Chambers judge to consider issues not dealt with and resolved in the judicial review.
In discussing the appropriate standard of review, the Court noted that the Commissioner was interpreting his own statute and the question was within his specialized expertise. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, unless the question falls into a category of question to which the correctness standard continues to apply. The majority held that the timeliness question did not fall into such a category as it was not a constitutional question, a question regarding jurisdictional lines between competing specialized tribunals, a question of central importance to the legal system as a whole, nor a true question of jurisdiction or vires.
The majority noted that uncertainty has plagued standard of review analysis for many years. The “true questions of jurisdiction” category has caused confusion to counsel and judges alike. Without a clear definition or content to that category, doubt will continue on this question. The majority held that unless the situation is exceptional, the interpretation by a tribunal of its home statute or statutes closely connected to its function should be presumed to be a question of statutory interpretation subject to deference on judicial review.
The majority held that deference due to a tribunal does not disappear merely because its decision was implicit. When the decision under review concerns an issue that was not raised before the decision-maker, the reviewing Court can consider reasons which could have been offered in support of the decision. Reasons given by a tribunal in other decisions on the same issue can assist a reviewing Court in determining whether a reasonable basis for an implied decision exists.
Other decisions by the Commissioner and the adjudicator have provided consistent analyses of the similarly-worded s. 69(6) of the Freedom of Information and Protection of Privacy Act, RSA 2000, c. F-25 (“FOIPA”). The Commissioner has held that a similar 90-day time limit in s. 69(6) applies only to his duty to complete an inquiry and not to extending time to complete an inquiry. The majority held that it was reasonable to assume that the Commissioner’s interpretations of s. 69(6) of FOIPA are the reasons of the adjudicator in this case. Both s. 50(5) of PIPA and s. 69(6) of FOIPA govern inquiries conducted by the Commissioner. They are identically structured and use almost identical language. It was reasonable for the adjudicator to apply the Commissioner’s interpretation of s. 69(6) of FOIPA to s. 50(5) of PIPA. As there existed a reasonable basis for the adjudicator’s implied decision in this case, the appeal was allowed.
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