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Date: 20040610

Docket: T-691-03

Citation: 2004 FC 849

Vancouver, British Columbia, Thursday, this 10th day of June 2004

Present:           THE HONOURABLE MR. JUSTICE MARTINEAU                               

BETWEEN:

                                                               ASHOT TUNIAN,

                                                NATALIA YEFIMOVNA TUNIAN,

                                             TIGRAN ASHOTOVICH TUNIAN and

                                                VARDAN ASHOTOVICH TUNIAN

                                                                                                                                           Applicants

                                                                         - and -

                                            CHAIRMAN OF THE IMMIGRATION

                                                        AND REFUGEE BOARD

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]         The applicants were refused refugee status on June 25, 2002. By the present application made pursuant to section 41 of the Privacy Act, R.S.C. 1985, c. P-21 (the "Act"), the applicants seek review of the decision by the respondent not to disclose draft reasons (the "notes") prepared by Mr. Richard Vanderkooy, the member of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") who made the decision determining that the applicants are not Convention refugees.


[2]         It appears that, after the hearing of the refugee claims made by the applicants, the Board Member dictated the notes using the same equipment that was also used to record the proceedings. The dictation was transcribed but the Board did not retain a copy of the transcription as it was of the opinion that it belonged to the Board Member and, accordingly that it was not part of the official record of the Board. Therefore, the request made by the applicants to obtain the notes was denied. In this regard, the respondent relies on paragraph 12(1)(b) of the Act, as this provision has been construed by the Federal Court of Appeal in Canada (Privacy Commissioner v. Canada (Labour Relations Board) (2000), 257 N.R. 66 (F.C.A.), [2000] F.C.J. No. 617 (C.A.) (QL)), affirming Canada (Privacy Commissioner) v. Canada (Labour Relations Board) (1996), 118 F.T.R. 1, [1996] F.C.J. No. 1076 (T.D.) (QL).

[3]         The respondent's decision not to disclose the notes was the object of a complaint to the Privacy Commissioner of Canada, who determined on March 7, 2003 that the notes were not under the Board's "control", and therefore were not subject to disclosure.

[4]         Subsection 12(1) of the Act reads as follows:

12. (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act has a right to and shall, on request, be given access to

12. (1) Sous réserve des autres dispositions de la présente loi, tout citoyen canadien et tout résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés ont le droit de se faire communiquer sur demande_:

(a) any personal information about the individual contained in a personal information bank; and

(b) any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution.

[My emphasis]

a) les renseignements personnels le concernant et versés dans un fichier de renseignements personnels;

b) les autres renseignements personnels le concernant et relevant d'une institution fédérale, dans la mesure où il peut fournir sur leur localisation des indications suffisamment précises pour que l'institution fédérale puisse les retrouver sans problèmes sérieux.

[Non souligné dans l'original]


[5]         As we can see, subsection 12(1) of the Act limits the right of access to information that is either in a "personal information bank" or under the "control" of a government institution. In Canada (Privacy Commissioner), supra, the Federal Court of Appeal held that notes made by quasi-judicial decision-makers in the course of carrying out an independent adjudicative function are not in the control of the administrative tribunal but, rather, are in the control of the member himself. Speaking for the Federal Court of Appeal, Desjardins J.A., at paragraphs 5, 6, 8, 9 and 10, indicated as follows:

While the notes taken by the Board members may or may not amount to "personal information", a matter we need not decide, it is obvious to us that these notes are not "under the control" of the Board as provided in paragraph 12(1)(b) of the Privacy Act. These notes are being taken during the course of quasi-judicial proceedings, not by employees of the Board, but by Governor in Council's appointees endowed with adjudicative functions which they must perform, not as agent of the Board, but independently of other members of the Board including the chairperson of the Board or a government institution. Board members are under no obligation to take notes although they may. Their notes are not part of the official records of the Board and are not contained in any other record keeping system over which the Board has control.

The trial judge made the following statement with which we agree:

... It is clear that there is no requirement either in the Canada Labour Code, or in the CLRB policy or procedure touching upon the notes. The notes are viewed by their authors as their own. The CLRB members are free to take notes as and when they see fit, and indeed may simply choose not to do so.

The notes are intended for the eyes of the author only. No other person is allowed to see read or use the notes, and there is a clear expectation on the part of the author that no other person will see the notes. The members maintain responsibility for the care and safe keeping of the notes and can destroy them at any time. Finally, the notes are not part of the official records of the CLRB and are not contained in any other record keeping system over which the CLRB has administrative control.

In my view, it is apparent from the foregoing that however broadly one construes the word control, the notes in issue were not "under the control" of the CLRB within any of the meanings that can be attributed to that term. Not only are the notes outside the control or custody of the CLRB but they are also considered by the CLRB to fall outside the ambit of its functions.

...

We agree with the trial judge's conclusion that, by means of this power, the Board could not exercise such control over these notes as to bring them "under the control of a government institution" within the meaning of paragraph 12(1)(b) of the Privacy Act.

A regulation that, for instance, requires members to take notes, prescribes the form of such notes or requires that they be deposited with the Board, would be invalid as a breach of the aspect of the duty of fairness respecting the independence of adjudicative decision makers. The principle of judicial independence and its corollary, the principle of adjudicative privilege, as applied to administrative tribunals, lie at the heart of the Board's lack of control over the notes as a government institution.


Counsel for the appellant suggested that, because the notes were under the control of members who made them, and because decisions of panels are decisions of the Board, the notes are therefore under the control of the Board, the government institution in question. In our view, this does not follow because it ignores the independence of the members in their adjudicative capacity.

                                                                                                                        [My emphasis]

[6]         Noël J. (as he then was), who rendered the Trial Division's decision in Canada (Privacy Commissioner), supra, incidentally noted at paragraph 111:

... Admittedly, the fact that records are left or kept on the government institution's premises allows for a de facto intrusion into these records by the institution. But that does not bring the records within the "control" of the institution as these words are used in paragraph 12(1)(b) of the Act. What is contemplated is control in any form so long as it is exercised in a lawful fashion. ... It is inconceivable that the Privacy Act could compel a government institution to intrude into the records of a third party in breach of that person's right to privacy in order to satisfy the privacy rights of others.

                                                                                                                        [My emphasis]

[7]         This conclusion reached by Noël J. follows from the reasoning expressed earlier in that decision at paragraphs 28, 76 and 77:

... In my view, these issues of statutory interpretation do not command a simple solution nor can they be resolved in isolation, because of the more fundamental issue raised by the Commissioner's application. In essence the Commissioner is disputing the soundness of the long-established principle that decision makers should be free to hear and decide the cases before them without any influence from any outsiders for any reason, and of the corollary to this principle, that the decision-making processes of decision makers should not be subjected to any intrusion by outsiders. ... The requirement of independence has been held by the courts to be a rule of natural justice to which administrative tribunals must adhere subject to the supervision of the courts.

...

... While judicial review by its very nature will sometimes require a court to closely examine the internal aspects of the decision-making process when confronted with "valid reasons for believing that the process followed did not comply with the rules of natural justice," ... and while to that extent administrative tribunals cannot rely on deliberative secrecy to the same extent as the courts, I am otherwise aware of no principle or authority which would authorize an intrusion into the thought process of a decision maker beyond what is revealed by the reasons.


It is the duty and role of courts to ensure that administrative tribunals make their decisions in accordance with the rules of natural justice. ... As such, courts are called upon to warrant the fairness of the process. To do so the Court must ensure that the tribunal possesses the freedom to decide matters independently, as it sees fit, without interference from anyone at any time. In my view, regulated and systematic intrusions by outsiders into the thought process of a decision maker as it stands to be revealed by the hearing notes would impact negatively on the integrity of the decision-making process.

                                                                                                                        [My emphasis]

[8]         Noël J.'s comments above are consistent with the Federal Court of Appeal decision in Canada (Privacy Commissioner), supra.

[9]         I find that the underlying reasoning in both the Trial and Appeal decisions in Canada (Privacy Commissioner), supra, applies here: deference should generally be accorded to the independence of decision-makers exercising an adjudicative function. Like the Canada Labour Relations Board, the Board is a quasi-judicial tribunal. Its members are Governor-in-Council appointees, not employees of the Board. They exercise an independent adjudicative function. The Board does not require the Board Member to keep draft reasons or notes from a hearing on the official record, as it is part of the decision-making process associated with an independent adjudicative function and, as such, should not be under the control of the Board. Rather, the Board's policy is that Board Members are encouraged to keep notes to the extent that notes are an aid in the decision-making process. Accordingly, all notes, including draft reasons, prepared by Board Members are considered to belong to the Board Member.


[10]       The mere fact that the Board Member has used the Board's equipment to record the notes does not make them part of the official record of the proceedings before the Board. The notes were dictated after the hearing had been adjourned. Clearly, they were intended for the eyes of the Board Member only. The act of dictating the notes was a private act of the Board Member which could have been otherwise done in the Board Member's chamber. Further, considering that no final decision had been made at the time the notes were prepared, it cannot be said that the Board Member had relinquished to the Board the control he legally had over the notes, or that he had otherwise waived any right he has under the common law or the Act to resist any request to communicate the notes.

[11]       In conclusion, taking into account the quasi-judicial nature of the Board and the context in which the notes were made, I find that the notes were not under the control of the Board as to come within the ambit of paragraph 12(1)(b) of the Act. I would add that, even if the notes were under the Board's control, they are likely exempt from disclosure under paragraph 22(1)(b) of the Act, as their disclosure would compromise the operation of the Board (Canada (Privacy Commissioner),supra).

                                               ORDER

THIS COURT ORDERS that this application be dismissed.

(Sgd.) "Luc Martineau"

Judge


                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-691-03

STYLE OF CAUSE: ASHOT TUNIAN ET AL. v. CHAIRMAN OF THE IMMIGRATION AND REFUGEE BOARD

PLACE OF HEARING:                                 VANCOUVER, B.C.

DATE OF HEARING:                                   JUNE 8, 2004

REASONS FOR ORDER

AND ORDER:          THE HONOURABLE MR. JUSTICE MARTINEAU

DATED:                     JUNE 10, 2004

APPEARANCES:

PHIL RANKIN                                                FOR THE APPLICANTS

HELEN PARK                                                 FOR THE RESPONDENT

SOLICITORS OF RECORD:

PHIL RANKIN                                                FOR THE APPLICANTS

RANKIN & BOND

VANCOUVER, B.C.

MR. MORRIS ROSENBERG                                      FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA

OTTAWA, ONTARIO


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Date Modified: 2014-04-23