COURT OF APPEAL FOR ONTARIO

DATE: 2006-09-21 DOCKET: C43741

RE: JAMES DOUGLAS JACKSON and DONALD ALEXANDER SMITH (Plaintiffs/Appellants) – and – ATTORNEY GENERAL OF CANADA (Defendant/ Respondent)

BEFORE: McMURTRY C.J.O., BLAIR J.A. and CUNNINGHAM A.C.J. S.C.J. (Ad hoc)

COUNSEL: Brian W. Abrams and Christopher J. Edwards for the appellants R. Jeff Anderson for the respondent

HEARD & RELEASED ORALLY: September 18, 2006

On appeal from the order of Justice Michel Z. Charbonneau dated of the Superior Court of Justice dated June 3, 2005.

E N D O R S E M E N T

[1] The appellants bring this action on behalf of all Correctional Services Canada employees who work at the Joyceville prison. The claim arises out of circumstances in which an Employee Address Listing found its way into the hands of the inmate population and circulated there for a period of two to three months. When the List was recovered, certain of the names and addresses had been highlighted. The claim is put forward on grounds of negligence, breach of statutory duty, breach of privacy rights, breach of fiduciary duty and breach of the plaintiffs’ rights under s. 7 of the Charter.

[2] On a Rule 21 motion brought by the defendant, Justice Charbonneau permitted the action to proceed on the negligence and breach of privacy rights grounds but dismissed the claims for breach of statutory duty, breach of fiduciary duty and breach of s. 7.

[3] On appeal, the appellants have not pursued the claim for breach of statutory duty but they seek to set aside the decision respecting the fiduciary duty and s. 7.

[4] In our view, the motions judge erred in not permitting the action to proceed on these latter grounds. Based on the pleadings, it cannot be said that it is “plain and obvious” at this stage that the claims cannot succeed.

[5] The fiduciary concept is a flexible one. Whether it can be established that, given all the surrounding circumstances, the employees could reasonably expect the employer to have acted in their best interests in relation to the collection, storage and safeguarding of the personal information in question, and whether that would be sufficient to ground a fiduciary relationship, and whether there was a breach of such a relationship, if it did exist, are questions that are best left to trial for resolution: see Hodgkingson v.Simms (1994), 1994 70 (SCC), 117 D.L.R. (4th) 161 at 176 (S.C.C.).

[6] The appellants and the respondent agree that the motion judge erred in concluding that the Charter did not apply to the relationship between employer and employee in this case and we proceed on that basis in analysing the s. 7 argument.

[7] The respondent submits, however, that the motion judge was correct in concluding that the employees’ telephone numbers and addresses were not of such fundamental importance as to rise to the level of any interest concerning life, liberty or security of the person under s. 7 of the Charter. Again, based on the pleadings, we do not agree. In para. 15-17 of the statement of claim, the plaintiffs plead sufficient facts to entitle them to a trial as to whether the private information in question engages s. 7 and whether the level of stress and anxiety engendered by its release rises to the level of “serious state imposed psychological stress” referred to by Bastarache J. in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307.

[8] On its face, the decision of the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G. (J.) (1999), 1999 653 (SCC), 177 DL.R. (4th) 124 would appear to limit resort to the s. 7 right to an individual’s interaction with the justice system and its administration (para. 65). However, the law with respect to s. 7 is evolving, and whether it can be said that the defendants’ impugned conduct in allegedly failing to safeguard the Employee List while operating the prison, constitutes government action “in the course of the administration of justice”, is also a matter that is better sorted out at trial.

[9] Accordingly, while the various claims that are raised may be somewhat duplicative, it is not clearly obvious that they cannot succeed, and they should be dealt with at a trial.

[10] The appeal is therefore allowed. The appellants are entitled to their costs fixed in the amount of $7,500 all inclusive.

“R.R. McMurtry C.J.O.”

“R.A. Blair J.A.”

“J.D. Cunningham A.C.J. S.C.J. (Ad hoc)”