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.

The 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 the 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 interesting as it adds a third party wrinkle to a Privacy Act complaint. The Court noted that while the results of the report were directed to the CRA, Ms. Daley’s conduct, namely her unauthorized disclosure, was the subject matter of the Office of the Privacy Commissioner of Canada’s report. Ms. Daley was a private-sector lawyer retained by the CRA (the government institution) and was not an employee of that institution. Therefore her obligations towards the institution were different than that of an employee. She was retained to advise the CRA of their legal rights and obligations, and not vice versa. Lastly, the Court stated that violating the Privacy Act is of limited consequence for an institution, but has wide implications for a private-sector lawyer.

In Hill v Church of Scientology [[1995] 2 SCR 1130] the Supreme Court of Canada held that, to lawyers, reputation is extremely important. Violating the Privacy Act would negatively affect Ms. Daley’s professional reputation. In fact, Mr. H was using the Office of the Privacy Commissioner of Canada findings to start a letter-writing campaign to smear Ms. Daley’s reputation. The Court relied on Hill to determine that Ms. Daley had a direct and significant interest in protecting her professional reputation. The Court found that she should have been notified and given a chance to respond. Ms. Daley was owed a duty of fairness by the OPC.

The Office of the Privacy Commissioner of Canada’s concerns about the procedural difficulties of recognizing a general duty of fairness to third parties was dismissed. The Court stated that the particular facts of this case did not give rise to a general duty that would apply to all third parties.

The Issues

Ms. Daley had a right to notice and a hearing before a decision was handed down by the Office of the Privacy Commissioner of Canada. The administrative process leading up to the decision was incorrect in law. Part III of this article will address the decision made by the Office of the Privacy Commissioner of Canada. As you will see, the Court also found issues with the decision and it was declared to be unreasonable. Contacting our top Toronto Tax Lawyers to determine if you can apply for judicial review of a CRA decision may be the solution to your tax issue. Please continue to Part III of this case comment to read about why the Office of the Privacy Commissioner of Canada’s decision was unreasonable and the remedy that was provided to Ms. Daley.
Continue Reading More about Daley v. Canada (Attorney General) Toronto Tax Lawyer Case Comment Part 3
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About the Author

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David J. Rotfleisch

David J. Rotfleisch, a leading Canadian tax lawyer, is not only a certified specialist in taxation but also a chartered professional accountant. Most recently, David is a pioneer in Canadian crypto taxation.

As of April 2020, he was one of 12 Ontario Certified Specialists In Taxation™.

Learn more about David J. Rotfleisch