Date: 20100924
Docket: T-1621-09
Citation: 2010 FC 955
Ottawa, Ontario, September 24,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MS.
ANNETTE J. SOUP
Applicant
and
BLOOD
TRIBE BOARD OF HEALTH
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
Annette
Soup (Soup), whose privacy complaint led to a Supreme Court decision on
solicitor-client privilege, has applied to this Court pursuant to s. 14(1) of
the Personal Information Protection and Electronic Documents Act (Act or
PIPEDA) for various remedies including damages.
[2]
The
Applicant was self-represented, and the Court’s understanding of the relief
claimed is for (a) the disclosure of an unredacted letter which Soup claims caused
all her problems, (b) an order requiring the Respondent to correct the
“inaccuracies” in the letter, (c) the public posting of the correction, and (d)
unspecified damages.
II. BACKGROUND
[3]
Soup
was dismissed from her employment as a community mental health worker by the
Respondent in April 2002. She had been employed for eight months and was
terminated following a performance evaluation.
[4]
During
the performance evaluation, the Applicant was informed that the Respondent had
received a letter from an employee at the Kinai Women’s Shelter alleging that
Soup had breached her duty of confidentiality in respect of two telephone
conversations.
[5]
Soup
requested a copy of the letter so she could challenge its contents. The
Respondent refused. The Applicant then requested a copy of her personnel file
which was also refused; according to the Respondent, she already had copies of
its contents.
[6]
The
Applicant filed a complaint with the Privacy Commissioner seeking access to her
personnel file with the expectation that it would contain the breach of
confidence letter. The complaint covered a number of other issues not
particularly relevant to this current matter.
[7]
The
Respondent’s position with respect to withholding the breach of confidence letter
was that granting the Applicant access would reveal personal information of a
third party. Moreover, the Applicant had already been informed of the contents
of the letter during her evaluation.
[8]
The
Commissioner dismissed the bulk of the complaint but did conclude that the
breach of confidence letter could be released if the personal information of
the third party was severed. Following the Commissioner’s recommendation, the
Respondent severed the third party information and released the letter to the
Applicant in redacted form.
[9]
The
Applicant, after much delay in the processing of her complaint (a fact for
which the Court attributes no blame), now seeks the relief outlined.
III. ANALYSIS
[10]
This
is not a matter for which a standard of review analysis is required. Section 14
provides for a de novo review of the issues in respect of which the
complaint was made. However, only those matters which properly fall within the
Act may be considered even if the complaint is more broadly cast.
[11]
The
Court’s remedial powers are limited to the relief set forth in s. 16:
|
16.
The Court may, in addition to any other remedies it may
give,
(a) order an
organization to correct its practices in order to comply with sections 5 to
10;
(b) order an
organization to publish a notice of any action taken or proposed to be taken
to correct its practices, whether or not ordered to correct them under
paragraph (a); and
(c) award damages to
the complainant, including damages for any humiliation that the complainant
has suffered.
|
16.
La Cour peut, en sus de toute autre réparation qu’elle
accorde :
a)
ordonner à l’organisation de revoir ses pratiques de façon à se conformer aux
articles 5 à 10;
b)
lui ordonner de publier un avis énonçant les mesures prises ou envisagées
pour corriger ses pratiques, que ces dernières aient ou non fait l’objet
d’une ordonnance visée à l’alinéa a);
c)
accorder au plaignant des dommages-intérêts, notamment en réparation de
l’humiliation subie.
|
[12]
Soup’s
real complaint is that she was terminated from her employment in part because
of the allegations in the breach of confidence letter. However, she has taken
no legal action for wrongful dismissal. The statutory right of action under the
Privacy Act is not a substitute for an action for wrongful dismissal
where dismissal is the source of the complaint.
[13]
The
Applicant also seeks to have the Respondent correct the allegations in the said
letter. However, it is unclear how the Respondent could correct facts alleged,
particularly in the context of the Privacy Act.
[14]
Soup
knows the substance of the allegations but it appears that she has not taken
the usual steps of putting her view of the allegations or her side of the story
“in the record”. The Respondent has already committed to removing the offending
letter from the Applicant’s personnel file. It is difficult to suggest that anything
more could be done at this stage.
[15]
Section
16 of the Act limits the Court’s remedies of ordering corrective action or
notice thereof to an organization’s practices. The type of corrective
remedy the Applicant requests is not related to the Respondent organization’s practices.
Practices generally mean the organization’s usual business methods or
procedures. As a result, the Applicant’s request falls outside the scope of the
Court’s remedial power under s. 16 of the Act.
[16]
While
the Applicant’s complaint to the Commissioner was upheld, it was upheld in
respect of a narrow grounds of complaint. The Respondent’s collection, use and
disclosure of the Applicant’s personal information were all deemed appropriate.
In the absence of any other compelling evidence, the Court accepts the
Commissioner’s report as the factual basis for considering remedies.
[17]
The
only failing of the Respondent was the delay in providing a redacted copy of
the offending letter. Any consideration of remedies, particularly damages, must
take this limited breach and its reasons into consideration.
[18]
There
is no finding or evidence of malice or disregard in the Respondent’s delay. The
delay was significantly attributed to the problems of what and how to sever
personal information of a third party. The uncertainty of this process was more
acute in the early days of the Act when this complaint originally arose. There
was little practical or judicial guidance available at the time.
[19]
The
Respondent accepted that it had erred and amended its policies on
severance/disclosure accordingly.
[20]
The
Applicant was unable to assist the Court in defining either the nature or
quantum of her damages under the Act. Moreover, the losses she has experienced flow
from her dismissal from employment; they do not relate to the invasion of her privacy
nor to any humiliation caused by the delay in gaining access to the redacted
version of the breach of confidence letter.
IV. CONCLUSION
[21]
Therefore,
the Court will not award any of the remedies requested. The Application is
dismissed. The Court is confident that the Applicant’s former employer would
not seek to extract costs given the Applicant’s troubled state. No costs will
be awarded.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed without costs.
“Michael
L. Phelan”
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