Date: 20220222

Docket: 21-T-61

Citation: 2022 FC 243

Ottawa, Ontario, February 22, 2022

PRESENT: The Honourable Madam Justice Elliott

BETWEEN:

CHANDRAHAS JOG

Applicant

and

BANK OF MONTREAL

Respondent

ORDER AND REASONS

I. Background Facts

[1] The Applicant, who is self-represented, has filed a motion in writing pursuant to Rule 369 of the Federal Courts Rules [Rules] for an order granting him an extension of time to file an application to review the decision of the Office of the Privacy Commissioner of Canada (OPC) made in a Summary Report [Report] dated March 16, 2020.

[2] The OPC determined that the Applicant’s complaint against the Respondent for collecting his personal information from a third party without his consent was not well-founded. The personal information was obtained from assessments conducted in the context of workplace accommodations for the Applicant.

[3] The Applicant’s moving document is entitled “Notice of Preliminary Motion”. As the Rules do not provide for a Notice of Preliminary Motion, I am treating this document as the Applicant’s Notice of Motion and Motion Record, hereafter referred to as the “Motion”.

[4] I have read and considered the Motion materials of each party, including the Report, the facta and the supporting materials.

[5] The Respondent argues it is not clear whether the Applicant is seeking an extension of time for judicial review of the Report pursuant to section 18.1 of the Federal Courts Act, or is seeking to file an application under subsection 14(2) of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 [PIPEDA].

[6] The time within which to apply for judicial review under subsection 18.1(2) is within 30 days after the Report was first communicated to the Applicant. As noted in the Report, the time within which to make an application under section 14 of PIPEDA is within one year of the date of the Report.

[7] The Applicant acknowledges in his written representations at paragraph 2 of the Motion that the review application was to be completed before March 16, 2021. That is the deadline for an application brought pursuant to subsection 14(2) of PIPEDA.

[8] It appears from the foregoing that the Applicant intended to proceed under PIPEDA.

[9] The Respondent has fairly stated that, when factoring in the Covid-19 suspension period, the time to file under subsection 14(2) expired on August 15, 2021.

[10] The Motion was submitted to the Registry of the Court on December 17, 2021. That is just over 4 months after the deadline of August 15, 2021.

II. The Test for an Extension of Time

[11] The four-part test to determine whether to grant a request for an extension of time is set out in Canada (Attorney General) v Larkman, 2012 FCA 204 [Larkman] at paras 61-62:

1. Did the moving party have a continuing intention to pursue the application?

2. Is there some potential merit to the application?

3. Has the [Respondent] been prejudiced from the delay?

4. Does the moving party have a reasonable explanation for the delay?

[12] The Applicant does not need to satisfy all four of these questions. The overriding consideration is that the interests of justice are served. The importance of each question depends on the circumstances of each case: Larkman at para 62.

[13] Put another way, the question to be determined is whether, under the circumstances presented, the grant of an extension of time is necessary to do justice between the parties: Grewal v Minister of Employment and Immigration, 1985 CanLII 5550 (FCTAD), [1985] 2 FC 263 at para 14.

III. Was there a continuing intention to pursue the application and a reasonable explanation for the period of delay?

[14] The Respondent submits that the Applicant failed to state his intention to appeal the Report in his affidavit affirmed on November 29, 2021.

[15] Reading the affidavit of the Applicant, while keeping in mind that he is self-represented, it appears that he believes he has an arguable case. In his affidavit, and in his written representations on this motion, the Applicant identifies what he refers to as 10 wrongs committed by the Respondent. These range from providing unauthorized access to the Occupational Therapist (OT) to provide a cognitive assessment to using the resulting PHI to justify termination of the Applicant’s employment. PHI is the short form used for Personal Health Information. It includes an allegation that the Respondent’s human resources department did not abide by the terms of privacy outlined in the original 2005 offer of employment. The Applicant alleges that the human resources department documented incorrect personal information in the reasons for his dismissal, in internal memos and when suggesting he needed a cognitive assessment.

[16] Regarding his intention to pursue the application, the Applicant indicates he intended to apply for review during the stipulated time period. However, he was busy from January 2020 onward with his cases against the Respondent in the Federal Court of Appeal [FCA] for unjust dismissal under section 240 of the Canada Labour Code, and in the Ontario Court of Appeal [OCA]for damages for intrusion upon seclusion arising from the use and release of information from a cognitive assessment conducted by the OT employed by the third party: see Jog v Bank of Montreal, 2020 FCA 218 at para 1, and Jog v Bank of Montreal, 2020 ONCA 721 at para 2.

[17] The Respondent submits that the Applicant did not diligently pursue the present application. It states that given the Applicant’s appeals in other litigation against the Respondent, it is obvious the Applicant was aware of the deadlines to challenge a decision and chose not to do so.

[18] The decision of the OCA was released on November 12, 2020. On December 8, 2020, the OCA awarded fixed costs to the Applicant of $3,500 inclusive of disbursements and HST.

[19] The decision of the FCA was released on December 16, 2020. The Applicant was awarded his taxable disbursements in the FCA and in this Court.

[20] The time between the release of the FCA decision to August 2021 was 8 months. The Applicant says he could not file his application between January and March of 2021 because he was fighting ill health. He then had an invasive surgery in April 2021, after which he was asked to ‘take it easy’.

[21] The Applicant also states that he “can provide medical/surgical; reports” if asked by the Court. However, it is not up to the Court to seek out evidence that the Applicant indicates is available. It is up to the Applicant to put their best case forward.

[22] It is clear from the record that the Applicant is an experienced self-represented litigator in several courts. The Respondent lists ten different proceedings by the Applicant, in seven different forums, against three different parties - the Respondent, the OT and the third party. It is reasonable to assume from these matters, at least two of which were decided in his favour, that the Applicant would be aware that it is his obligation to file supporting evidence with his motion.

[23] Having considered the matter, I will give the Applicant the benefit of the doubt that he did have a continuing intention to pursue this matter.

[24] Without any documentation in the record of the Applicant’s health issues and surgery, I cannot stretch that benefit to the point of finding that the period of delay was reasonably caused or explained by the Applicant’s health issues.

[25] I find the Applicant has not provided a reasonable explanation for the delay as he has failed to provide any evidence to support his ill-health and surgery statements.

IV. Is there some potential merit to the application?

[26] A draft application has not been submitted by the Applicant so I will assess this part of the test based solely on the materials in the Motion records of each party, particularly the Report.

[27] The Applicant’s complaint is that the Respondent collected his personal and medical information without his consent. The Applicant had provided that information to a third party which employed an Occupational Therapist (OT). The third party was contracted by the Respondent to perform assessments of the Applicant in the context of a workplace accommodation.

[28] The assessments were performed by the OT, with the written consent of the Applicant.

[29] The Applicant states that, contrary to the terms of the Consent he signed, the third party shared with the Respondent his personal information from a cognitive test performed by the OT. He says the breach was that the Respondent did not have his consent to “accept or acquire and keep in possession or use or distribute my personal or Health information related to cognitive assessment.”

[30] The Applicant adds that “consent was not obtained from me or through the service provider [the OT] directly for the cognitive health related PHI to be collected used and distributed before or after the second act of assessment or neurofunction evaluation performed on October 12, 2016” for the purpose of terminating his employment.

[31] The Report indicates that the Applicant had been an employee of the Respondent from 2005 to 2017. From March 2007 until September 2015, he was on long-term disability from his job with the Respondent. During that period the Applicant’s original job of a Senior Advisor in Corporate Employee Relations evolved to an Associate-Everyday Banking role.

[32] The Report states that the Respondent noticed the Applicant had difficulties meeting the performance targets of his new role and arranged a series of assessments by an OT in late 2015. The purpose of the assessments was “to identify and address any barriers preventing Mr. Jog from successfully meeting the requirements of this role.”

[33] On December 15, 2015, the Applicant underwent an Accommodation Assessment conducted by the third party. This arose as a result of a referral by the Applicant’s manager who requested an assessment of the Applicant’s physical workstation.

[34] On October 12, 2016, the Applicant underwent a cognitive assessment. A detailed follow-up assessment and report was done on December 20, 2016. The result was a recommendation by the OT that consideration be given to finding other non-customer facing positions for the Applicant featuring standard, structured task completion.

[35] The Applicant’s affidavit dated November 29, 2021, contains a number of statements concerning his issues with the physical and cognitive assessments performed by the OT.

[36] Germane to this motion is the Applicant’s statement that there was no mention of a cognitive or neurological assessment in the Consent he signed on December 15, 2015.

[37] That is an accurate statement. The December 2015 Consent contains language that is broader than any particular type of assessment. The Consent contains several paragraphs, two of which are important to the merits of this Motion. The first such paragraph states:

By signing this Client Consent form, you have agreed that you have given your informed consent to the collection, use and/or disclosure of your personal information for the purposes of providing a professional assessment and treatment program. If a new purpose arises for the use and/or disclosure of your personal information, we will seek your approval in advance.

[38] The other important paragraph, which is cited by the OPC in the Report, states:

I agree that any representative of Gowan Consulting can collect, use and disclose personal information about [Chandrahas is handwritten here] as set out above. I agree to allow any representative of Gowan Consulting to discuss the results of my assessment, to release the report and obtain information regarding my condition and functional abilities with my physician, specialist, rehabilitation professionals, insurer, WSIB, legal representative or employer.

Note: only functional information regarding my work, abilities and workstation are released to my employer.

[39] The page is dated December 15, 2015. It is signed by the Applicant and witnessed.

[40] In the Report, the OPC found that the December 15, 2015 Consent allowed the third party (Gowan Consulting) to share the Applicant’s personal information with his employer for the purpose of professional assessments and that by signing the Consent the Applicant had authorized his employer to collect the information from the third party.

[41] The Applicant also submits that the Respondent did not have his consent to accept or acquire, and keep in its possession or use, or distribute, the Applicant’s personal or health information related to the cognitive assessment which was performed on October 12, 2016.

[42] The Applicant argued to the OPC that the December 2015 Consent became invalid in October 2016 when the Functional Cognitive Assessment was performed. The OPC found that, as stated in the December 2015 Consent, it could only have been terminated if the Applicant had withdrawn his consent. The OPC found there was no evidence the Consent had been withdrawn. In addition, the OPC noted that the Consent stated that any such withdrawal could not apply retroactively.

[43] The OPC concluded that, as a result of the signed Consent in December 2015, the Applicant knew or ought to have known that he was also consenting to the information being collected by the Respondent for the purpose of the workplace accommodation assessments.

[44] The October 12, 2016 Consent provides the Applicant’s consent for the third party to “complete an assessment of the employee’s functional cognitive skills to better understand the employee’s functional limitations and abilities.” The report that was written following the assessment is also dated October 12, 2016. It shows the account it is written for is that of the Respondent.

[45] A record of the separate October 12, 2016 Consent has been produced by the Respondent. It contains screenshots of the consent questions posed to the Applicant by way of a Tablet prior to administration of the BrainFx 360 Functional Cognitive Assessment (BrainFX).

[46] There are four statements. All have been checked-marked by the Applicant.

[47] The upshot of the questions is that the assessment is designed to provide information to the Applicant and to his health care professional about his neurofunction. It states the results are information only, not a diagnosis.

[48] The Applicant also accepted by adding a check-mark that the assessment is voluntary and he can stop it at any time. Finally, it indicates that the Applicant had an opportunity to ask questions regarding the assessment and they have been answered to his satisfaction.

[49] There is a large box on the Consent containing both the Applicant’s and the assessor’s signatures. They are dated October 12, 2016. Above the signatures is the statement “My signature below acknowledges my desire to voluntarily participate in BrainFx Assessment.”

[50] After the box there is an area entitled “Conclusion” which is signed by the CEO of the third party. It states that “[a]ll acknowledgements of consent required of the Client before access to the BrainFx systems were completed.”

[51] The Applicant’s case rests on his complaint to the OPC that the Respondent collected his personal information without his consent and the third party shared with the Respondent the Applicant’s personal information from a cognitive test performed by the OT without consent.

[52] The Applicant knew the assessments would contain his personal information. On reviewing the Consents and considering the Report, I am satisfied that the Applicant did provide consent to the third party to share its assessments with the Respondent.

[53] The Applicant has put forward no evidence in this motion or before the OPC that the Respondent improperly shared his personal information. To the contrary, the OPC found that the third party documented that the direct results, also known as the “raw data”, generated by the BrainFX assessment in October 2016 was never shared with the Respondent in conformance to the Note in the December 15, 2015 Consent. The Note stated that only functional information regarding the Applicant’s work, abilities and workstation are released to his employer.

[54] For the reasons set out herein and given the conclusion I have drawn below, I find it unnecessary to consider whether the Respondent would be prejudiced by granting the Applicant’s motion.

V. Conclusion

[55] The OPC found that the consents signed by the Applicant were fatal to his complaint. I similarly find, for the same reasons, that the Applicant’s motion for an extension of time must fail as he does not have an arguable case or a basis for a chance of success on judicial review. I have also found that the Applicant has not provided a reasonable excuse for the delay in bringing this motion.

[56] Even if the Applicant had met all the other parts of the test for an extension of time, I find in this instance, on the facts, that the absence of an arguable case is fatal to his motion to extend time to file an application for judicial review of the Report by the OPC: Maqsood v Canada (Attorney General), 2011 FCA 309 at para 12; McCann v Canada (Pension Plan Disability Benefit), 2016 FC 878 at para 25.

[57] The Applicant’s motion to extend time is dismissed, with costs to the Respondent.

ORDER in 21-T-61

THIS COURT ORDERS that the Applicant’s motion to extend time is dismissed, with costs to the Respondent.

"E. Susan Elliott"

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

21-T-61

STYLE OF CAUSE:

CHANDRAHAS JOG v BANK OF MONTREAL

MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES

ORDER AND REASONS

ELLIOTT J.

DATED:

february 22, 2022

WRITTEN REPRESENTATIONS BY:

Chandrahas Jog

For The Applicant

Christine Lonsdale

Stephanie Willsey

FOR THE RESONDENT

SOLICITORS OF RECORD:

McCarthy Tetrault LLP

Barristers and Solicitors

Toronto, Ontario

For The RESPONDENT