Federal Appeal

Civil Procedure

Applicant failed to demonstrate reviewable error

Applicant gave birth in Ontario during period of time chosen by Statistics Canada for study linking birth records to census data. Privacy Commissioner dismissed applicant’s complaint under Privacy Act (Can.) that birth records were used without her consent. Applicant brought application for judicial review. Respondent Director-General for Statistics Canada research centres (D-G) filed two affidavits stating applicant’s records were not used in study and that names were removed after linkage, minimizing any intrusion. Applicant brought unsuccessful motion to, among other things, have adverse inference drawn from D-G’s affidavit. Motions judge determined that adverse inferences pursuant to R. 81(2) of Federal Courts Rules (Can.) were not intended for inconsistencies or reliance on third-party evidence, that D-G’s role put her in position to know facts sworn were true, that D-G did provide some evidence of persons having personal knowledge, that affidavit was not clearly imprecise or plagued by inconsistencies, and that matter was best left for application judge. Applicant appealed. Appeal dismissed. Applicant failed to demonstrate reviewable error in motions judge’s refusal to compel D-G to testify. As for applicant’s request that adverse inference be drawn from fact that D-G’s affidavits were based on information and belief, judge determined admissibility of affidavits by conducting admissibility analysis based on personal knowledge of D-G and in so doing, committed no error. Motions judge correctly determined that D-G, by virtue of government responsibilities, was in position to depose to matters in question without necessarily having personal knowledge and that whether adverse inference should be drawn from otherwise admissible evidence was matter better left for application judge.

O’Grady v. Canada (Attorney General) (Sep. 6, 2016, F.C.A., Trudel J.A., Near J.A., and Donald J. Rennie J.A., A-21-16) Decision at 263 A.C.W.S. (3d) 31 was affirmed. 270 A.C.W.S. (3d) 648.

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