Date: 20001120
Docket: T-1593-99
BETWEEN:
JOHN E. CONNOLLY
Applicant
- and -
CANADA POST CORPORATION and
CHAIRMAN MR. ANDRÉ OUELETTE
Respondents
REASONS FOR ORDER
MacKAY, J.:
[1] The applicant applies, pursuant to s. 41 of the Privacy Act, R.S.C. 1985, c. P-21, for review of the manner in which Canada Post Corporation dealt with a Privacy Act request made to the Privacy Commissioner in respect to a refusal by the Corporation to provide access to personal information relating to the applicant.
[2] The application was filed following a letter of July 20, 1999, from the Privacy Commissioner of Canada which reported his findings in relation to a complaint by the applicant that the Corporation had denied Mr. Connolly access to personal information. The Commissioner's report related to efforts over nearly 3 years to have access provided to the applicant to the information he requested, originally in September 1996. The Commissioner's investigation led the Corporation to withhold the information on grounds specified in the Act, with which the Privacy Commissioner did not agree. The Commissioner's intervention resulted in the Corporation releasing some information requested in February, May and June 1998, but thereafter some further information originally sought by the applicant continued to be withheld.
[3] In April 1999, the Commissioner advised the Chairman of the Corporation that in the Commissioner's view Mr. Connolly's Privacy Act rights had been contravened and he recommended that the balance of the information sought be released. In May 1999, the information was released to Mr. Connolly. The only information retained thereafter and not released to the applicant was information exempt from disclosure since it was not personal information concerning Mr. Connolly, a description confirmed by the Privacy Commissioner.
[4] In sum, the Commissioner's letter of July 20, 1999, advised the applicant of progress in dealing with his complaint, culminating in release of the information to which he requested access and to which he was entitled. It also advised that in the Commissioner's view, in the initial denial of access to information to which he was entitled, his Privacy Act rights were contravened. The letter also advised:
| Finally, you should know that you have the right under section 41 of the Privacy Act to apply to the Federal Court of Canada for a review of the manner in which Canada Post dealt with your request ... |
and the letter provided advice about contacting the Court if Mr. Connelly wished to proceed.
[5] It was this advice that led Mr. Connolly, who is not a lawyer but represents himself, to file his application for review under s. 41 of the Act. Thus, he filed his application and a supporting affidavit in support, with a copy of the letter of July 20, 1999, from the Privacy Commissioner. He did not file a motion record but one was filed on behalf of the respondents and the matter was set down for a hearing. When it came on to be heard, the applicant, representing himself, offered to file an application record prepared for the hearing. That offer I declined, as contrary to the Court's practice and since counsel for the respondents objected to such a late filing. Nevertheless, the applicant was invited to use his prepared record as the basis of any oral submissions he wished to address to the Court, and this he did.
[6] At the conclusion of the hearing I reserved decision. Having now considered the submissions on behalf of the parties, I dismiss the applicant's application for the following reasons.
[7] The Court's authority to review the refusal to provide access to information requested under the Privacy Act is set out in s. 41, which provides:
41. Any individual who has been refused access to personal information requested under subsection 12(1) may, if a complaint has been made to the Privacy Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of the investigation of the complaint by the Privacy Commissioner are reported to the complainant under subsection 35(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.
41. L'individu qui s'est vu refuser communication de renseignements personnels demandés en vertu du paragraphe 12(1) et qui a déposé ou fait déposer une plainte à ce sujet devant le Commissaire à la protection de la vie privée peut, dans un délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au paragraphe 35(2), exercer un recours en révision de la décision de refus devant la Cour. La Cour peut, avant ou après l'expiration du délai, le proroger ou en autoriser la prorogation.
[8] That section must be read together which ss. 48 and 49 which set out the authority of the Court to act where it finds that access to requested personal information has been wrongfully refused. Those provisions limit the Court's authority to ordering that there be access where that has been refused contrary to the Act.
[9] In this case, at the time he filed his application for review Mr. Connolly had received copies of all of the information he had requested to which he was entitled under the Act. The Court could not order more than that. It has no authority under the Act to review the process of denial and order any redress where there has been ultimate release of the information requested. That review may be done by the Privacy Commissioner in his report of investigation of a complaint. He may find, as was the case here, that in his opinion the complainant's Privacy Act rights were contravened. If it were within the Court's authority I would say that clearly seems to have been the case here, over many months, until the information requested was finally fully released in May 1999. Thereafter, it could not be said that the applicant's Privacy Act rights continued to be infringed.
[10] The rights assessed under the Privacy Act are those set out in that Act, and any redress for their contravention exists by virtue of that Act. There is no common law remedy, and no remedy is provided by the Act, for wrongly withholding publicly held personal information from the person requesting it. There is no right to damages under the common law or under the Privacy Act.
[11] Thus, this Court has no lawful authority to award compensation as Mr. Connolly requested "for 3 years of unnecessary appreciation, frustration, upset, anxiety, stress, self-representation costs [and] general damages". Nor is the Court free to order at large, without reference to a particular case, that Canada Post "release in its entirety all Privacy requests for personal information pursuant to all sections of the Canadian Privacy Act, without further delay than necessary."
[12] In sum, since the applicant has received the information he requested to which he was entitled, and that circumstance existed at the time of his application for review under the Privacy Act, despite the advice of the Privacy Commissioner of Canada, I find the Court has no remedy to provide to the applicant in regard to delay by the respondents in finally according him access to personal information under the Act.
[13] The respondents ask for costs. Ordinarily an award of costs would follow success on such a review. In my opinion, this is not a case for the award of costs. The applicant representing himself simply followed advice outlined as an option for him to pursue by the Privacy Commissioner, where only after long delay by the respondents were the applicant's rights under the Act, as assessed by the Commissioner, met.
[14] In my opinion each party should bear their own costs and the order dismissing the application so provides.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, ONTARIO
November 20, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1593-99
STYLE OF CAUSE: JOHN E. CONNOLLY v.
CANADA POST CORPORATION ET AL.
PLACE OF HEARING: HALIFAX
DATE OF HEARING: NOVEMBER 13, 2000
REASONS FOR ORDER OF MacKAY, J.
DATED: NOVEMBER 20, 2000
APPEARANCES:
JOHN CONNOLLY FOR APPLICANT
DAVID MOMBOURQUETTE FOR RESPONDENT
SOLICITORS OF RECORD:
COX HANSON O'REILLY MATHESON FOR RESPONDENT
HALIFAX