Court File and Parties

Citation: de Pelham v. Peel Regional Police Services, 2015 ONSC 6558 Divisional Court File No.: DC-14-84-00 Date: 2015-10-23 Superior Court of Justice – Ontario – Divisional Court

Re: Mark David de Pelham, Applicant And: Peel Regional Police Services and Information and Privacy Commissioner of Ontario, Respondents

Before: Molloy, Hambly and Hackland JJ.

Counsel: Mark David de Pelham, in person Lawren Murray, for the Respondent Information and Privacy Commissioner of Ontario

Heard: October 22, 2015 in Brampton

Endorsement

[1] This is an application for judicial review of a decision of the Information and Privacy Commissioner of Ontario ("IPC") dismissing the applicant's privacy complaint against the Peel Regional Police Service. The applicant requests that: (a) the Court find the decision maker erred in deciding the release of information was justified under section 72(1) of the Child and Family Services Act ("CFSA") and allowable under section 32(e) of the Municipal Freedom of Information and Protection of Privacy Act ("MFIPPA"); (b) the Court find an unjustified invasion of privacy under section 14(b)(3) of the MFIPPA; and (c) that the decision to dismiss the complaint be struck down and the complaint be returned to the IPC for investigation.

[2] As a preliminary matter, we are of the view that we are without jurisdiction to decide this matter. In Reynolds v. Ontario, [2006] O.J. No. 4356, the Divisional Court determined that when the IPC refuses to investigate a complaint regarding an alleged privacy breach, the IPC is acting in a legislative capacity, and the Court cannot intervene due to parliamentary privilege.

[3] The Commissioner's tribunal function relates only to access to information appeals. The IPC's tribunal authority is spelled out by section 39(1) of the MFIPPA, and does not include adjudication of complaints regarding privacy breaches. The IPC's powers on adjudication (section 41) are all restricted to access to information, and are irrelevant to complaints regarding privacy breaches. The IPC has no "tribunal" role for investigating privacy complaints. The Act only authorizes (section 46(f)) the IPC to receive representations from the public concerning the operation of the Act. The Act does not grant the IPC powers to investigate and issue findings regarding privacy complaints, to compel the production of records in the context of a privacy investigation, to require submissions, or to adjudicate privacy complaints. The Commissioner's investigations and reports on compliance with the privacy provisions of the Act are a "legislative function". This function derives from the IPC's duty under section 58 of Freedom of Information and Protection of Privacy Act ("FIPPA") to make annual report to the Legislative Assembly. This report includes the IPC's assessment regarding the extent to which institutions are complying with the legislation and its recommendations concerning the practices of institutions and potential amendments to the Act. The IPC has no statutory requirement to conduct investigations into privacy complaints, but can do so at its discretion to assist in reporting to the legislature on the practices of institutions. This is a legislative function subject to the same privileges that protect the deliberations of the Legislative Assembly from review. As was decided in Reynolds, supra, at para. 21, the judiciary has no role to play in supervising the IPC's reporting function or any of its subsidiary components. Requiring the IPC to investigate would undermine the Legislature's confidence in the IPC's ability to prioritize cases that warrant investigation, allocate resources and provide the Legislature with the independent assessment and recommendations contemplated by section 58 of the FIPPA. The IPC's decisions regarding which privacy complaints merit further investigation are therefore covered by parliamentary privilege.

[4] Alternatively, and because the applicant devoted almost his entire submission on this point, even if we retained some power of judicial review, we find no reviewable error by the IPC. We see no problem with the Children's Aid Society advising police of the presence of a potential caregiver in a home where they have placed a vulnerable foster child for the purpose of ensuring that there are no safety concerns arising from that situation. Having received such information from the Children's Aid Society it was reasonable for the police to search their records. Further, we are satisfied that the IPC reasonably concluded that, in those circumstances, disclosure by Peel Regional Police was properly made for the purpose of complying with the duty to report a child in need of protection under s. 72 of the CFSA. That section applies to compel (and authorize) disclosure notwithstanding the provisions of other legislation, including privacy legislation. The IPC decision in this regard is based on an accurate interpretation of the law and was reasonable in all respects.

[5] Accordingly, this application is dismissed. The IPC does not seek costs, and none are ordered.

MOLLOY J.

HAMBLY J.

HACKLAND J.

Date: October 23, 2015