Federal Court

Administrative Law

Request to set aside non-binding finding of Privacy Commissioner not justiciable matter

Protocol was developed by RCMP and Department of Justice (DOJ) establishing process by which personal medical information of RCMP members could be disclosed to DOJ under s. 8(2)(d) of Privacy Act (Can.) for use in legal proceedings involving Crown. RCMP had been self-insured and therefore acquired much more personal medical information about members and their families than would otherwise be case. RCMP member was concerned about privacy implications of protocol and made complaint to Privacy Commissioner. Privacy Commissioner found that as long as two criteria found in Act were met, RCMP was authorized to disclose personal information without consent. RCMP member brought application for judicial review of Privacy Commissioner’s decision. Application dismissed. RCMP member’s request to set aside non-binding finding of Privacy Commissioner was not justiciable matter. Under s. 18(1)(a) of Federal Courts Act (Can.), court had exclusive jurisdiction to grant declaratory relief against any federal board, commission or other tribunal. There was no question that Privacy Commissioner exercised powers under federal legislation and was therefore federal board or commission. There was no trouble in holding that finding was act or proceeding under s. 18.1(3)(b). Finding did not rise to level of triggering legal rights enabling RCMP member to bring application for judicial review. Proposition of RCMP member that he was entitled to standing because he was party by virtue of his initiating complaint to Privacy Commissioner was not accepted. Had there been justiciable issue, RCMP member would have had standing to bring application as he was directly affected by finding as complainant.

Sauve v. Canada (Attorney General) (Apr. 11, 2016, F.C., E. Susan Elliott J., T-2584-14) 265 A.C.W.S. (3d) 556.

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