COURT FILE NO.: 58388/18 (St. Catharines) DATE: 20190107 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DIK LEE Applicant (Responding Party) – and – MAGNA INTERNATIONAL INC. and VENEST INDUSTRIES INC. Respondents (Moving Parties)

Dik Lee, acting in person Eric T. Gresham, for the Respondents

HEARD: November 2, 2018

R. A. Lococo J.

REASONS FOR DECISION

I. Introduction

[1] Dik Lee has brought an application seeking access to all documents that contain his personal information in the possession of his employer and its affiliates. The Respondents move for dismissal of the application without leave to amend, on the grounds that (i) the application discloses no reasonable cause of action, and (ii) the court has no jurisdiction over the subject matter of the application.

[2] For the reasons that follow, I am granting the Respondents’ motion in part, with leave to amend.

A. Background

[3] Dik Lee has been employed as a production technician with Venest Industries in St. Catharines since 2011. He is currently on sick leave. Venest is a division of Cosma International, a wholly-owned subsidiary of Magna International Inc., the auto parts manufacturer. In these Reasons, I sometimes refer to Venest, Magna and their affiliates collectively as the “Company”.

[4] In September 2018, Mr. Lee brought an application for an order requiring the Respondents to provide access to all documents that contain Mr. Lee’s personal information in the possession of the Respondents and their affiliates, contractors, and all other entities with whom they have interacted. The application goes on to provide a comprehensive, non-exclusive list of the types of documents being sought, including reports, letters, emails, photographs, video recordings and audio recordings. The application also seeks an order permitting Mr. Lee to take photographs of the accessed documents and to set the cost of any photocopies at $0.11 per page. Mr. Lee brought the application on his own behalf, without counsel of record.

[5] The background information set out in the balance of this section is derived from Mr. Lee’s application and his supporting affidavit. Mr. Lee’s affidavit includes a number of documents attached as exhibits, many of which are also referred to in the application itself.

[6] The dispute between the parties dates from March 2018 when a contract employee made “an alleged harassment complaint” against Mr. Lee. Mr. Lee states that the harassment complaint was brought to his attention at a meeting with the Company’s Human Resources Manager on April 5, 2018 and a follow-up meeting the following day with the HR Manager and Mr. Lee’s supervisor. Mr. Lee states that at those meetings, he asked for but did not receive the information that he required to properly respond to the allegations against him, including the names of two other employees who provided the complainant with advice before he filed his formal complaint against Mr. Lee. Mr. Lee responded to the allegations against him in his own “formal complaint” letter dated April 8, 2018, submitted through the Company’s employee hotline. In that letter, Mr. Lee also complained about the unfairness of the investigation of the complaint against him, stating that he had been denied “full disclosure of all details surrounding the complaint, namely, the identities of the 2 advisors, and, the scope of their advice provided to the complainant.”

[7] Also attached as an exhibit to Mr. Lee’s affidavit is a written warning letter dated April 17, 2018 from Mr. Lee’s employer, in which (among other things) Mr. Lee was taken to task for “disrespectful, inappropriate and unwelcome conduct toward another Venest team member” and failing to fully cooperate with Company’s investigation. That letter also referred to an earlier, unrelated meeting between Mr. Lee and the Company’s HR Manager, during which Mr. Lee was alleged to have spoken to the HR Manager in an “inappropriate, disrespectful” manner.

[8] Mr. Lee promptly responded to the warning letter by submitting a second “formal complaint” letter through the employee hotline. In that letter, Mr. Lee refuted the “false allegations” referred to in the warning letter. He also complained about the fairness of the process, including the fact that he had not been given an opportunity to defend himself against the additional allegation involving the HR Manager. As well, the letter indicates that Mr. Lee was under medical care to help him “deal with the stress and grief that these false allegations” have caused him. Mr. Lee has been on sick leave since that time.

[9] Mr. Lee’s affidavit also refers to correspondence in May 2018 between legal counsel retained by Mr. Lee and the Company’s legal department. By letter dated May 14, 2018, Mr. Lee’s counsel requested the “names of the two employees that advised the contract employee to file a complaint”, noting that it is “important to know the names of the employees to ensure that they were not also involved in the investigation.” The letter also requests “a copy of the investigation report, if any”, noting that such information “will have to be produced during discovery if a claim was commenced”. In his affidavit, Mr. Lee indicates that he did not receive the requested “investigation documents” in response to his lawyer’s correspondence, nor did he receive that information in response to his own “formal complaint” letters through the employee hotline.

[10] The application and Mr. Lee’s affidavit also indicates that in August 2018, he wrote to the “Magna Privacy Officer” four times, copying Magna’s Chief Executive Officer. In those letters, Mr. Lee seeks access to “all documents containing Dik Lee’s personal information”, equivalent to the comprehensive access that Mr. Lee now seeks through his application. Those letters came directly from Mr. Lee, rather than through legal counsel. In the first three letters (but not the fourth), Mr. Lee indicates that he expects a response “in compliance with the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 – PIPEDA”.

[11] The application and Mr. Lee’s affidavit also refer to the response to those letters provided by the “Magna Privacy Officer”, a member of the Company’s legal department. In response to the first two of Mr. Lee’s letters, the Company’s legal counsel states that given the Company’s status as a provincially regulated automotive manufacturer, PIPEDA did not apply. He therefore requests clarification of “the purpose of, and legal basis for, your disclosure request”, noting Mr. Lee’s “previous threats of litigation”. That letter also confirms that the Company “does indeed collect your personal information for human resources purposes”, stating that “the Company would be pleased to provide you with access to your employee file … at your convenience.”

[12] In Mr. Lee’s fourth (and final) letter dated August 27, 2018, he repeats his demand for access to his “personal and confidential information” (as comprehensively outlined in his letters) but does not specifically refer to PIPEDA. That letter also states that the Company’s legal counsel “being the Privacy Officer in Ontario for Magna, ought to know that it is within my rights to request my personal and confidential information.” The letter also indicates that Mr. Lee will have no choice but to seek a court order to gain access if he did not receive a prompt response.

[13] In his responding letter dated August 28, 2018, the Company’s legal counsel states that the “Company remains ready and willing to provide you with ‘access to your personal and confidential information’” by allowing Mr. Lee to review the contents of his employee file. The letter also indicates that Mr. Lee may take copies of those documents and that the Company charges $0.25 per page for copies. However, the letter declines Mr. Lee’s comprehensive disclosure demand, indicating that Mr. Lee “provided no reasonable explanation or basis for this extraordinary request.” The letter also refers to Mr. Lee’s refusal to provide updated medical information to his supervisor to support his absence from work, and strongly encourages him to “fully cooperate in the return to work and the accommodation process”.

[14] Mr. Lee brought his application a short time later, returnable October 11, 2018. In addition to the application record, he provided a factum and a book of authorities.

[15] The Respondents then brought their motion to dismiss the application, with the same return date as the application. In addition to the notice of motion, the Respondents provided a factum and book of authorities with respect to the motion to dismiss only.

[16] On the return date, the application and the motion to dismiss were both adjourned to November 2, 2018. Prior to that date, Mr. Lee provided a factum and a book of authorities for the motion to dismiss. The Respondents provided an application record responding to Mr. Lee’s application, but not a factum or book of authorities for the application. There have been no cross-examinations on the affidavits supporting the application.

[17] On the hearing date before me, I agreed that on the filed material, it was appropriate to hear the motion only, rather than to proceed as well to hear the application on its merits. Among other things, it may be unnecessary to hear the application if the motion succeeds. As well, the parties have not had an opportunity to cross-examine the affiant of the other party’s affidavit (as provided for in r. 39.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194), as may be appropriate if the application were proceeding on its merits.

[18] I also note that Mr. Lee took exception to the Respondents’ “delay” in bringing the motion to dismiss, arguing that they failed to act “promptly” as required by r. 21.02. I find no merit in that submission. I find it hard to imagine what more could reasonably have been done in the circumstances.

B. Position of the parties and matters to be determined

[19] The Respondents argue that the application should be dismissed on two grounds:

a. The application discloses no reasonable cause of action; and b. The court lacks the jurisdiction over the subject matter of the application.

[20] According to the Respondents, the application seeks enforcement of alleged rights to personal information under PIPEDA. The Respondents say that PIPEDA does not apply to the Respondents, nor does PIPEDA create a statutory cause of action enforceable in this court.

[21] In response, Mr. Lee acknowledges that PIPEDA does not provide him with a statutory right to his personal information. Mr. Lee instead relies on his employment letter, which states that the terms of his employment are governed by that letter, the Company’s Employee Handbook, and other Company policies established from time to time. Mr. Lee says that those policies provide him with the right to access his personal information to the extent sought in the application.

[22] The Respondents deny that Mr. Lee’s employment letter or Company policies provide him with the right to access the extensive information that he has demanded. They say that Mr. Lee has already been offered access to his personal information, as set out in his personnel file. Among other things, they also say that disclosure of the identity of the individuals who provided advice to the complainant would not be consistent with the confidentiality requirements of the Company’s Workplace Violence and Harassment Policy, which are intended to ensure the integrity of the process and fairness to all those involved, including the subject of the complaint, the complainant, and any witnesses.

[23] Accordingly, the issues to be determined are as follows:

a. No reasonable cause of action: Does the application disclose a reasonable cause of action? b. Lack of jurisdiction: Does the court lacks the jurisdiction over the subject matter of the application?

[24] I will address these issues in turn below.

II. No reasonable cause of action

[25] Does the application disclose a reasonable cause of action?

A. Legal principles

[26] In support of their motion to dismiss the application, the Respondents relied on rr. 21.01(1)(b) and 14.09 of the Rules of Civil Procedure. Under r. 21.01(1)(b), a party may move to strike out a pleading on the ground that it discloses no reasonable cause of action. Under r. 14.09, an originating process that is not a pleading (including an application) may be struck out or amended in the same manner as a pleading.

[27] In Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at pp. 967-968, the Supreme Court of Canada characterizes r. 21.01(1)(b) (and analogous provisions in other jurisdictions) as “a ‘codification’ of the court’s power under its inherent jurisdiction to stay actions that are an abuse of process or that disclose no reasonable cause of action”.

[28] In Hunt, at p. 980, the court sets out the following test that applies on a motion to strike under r. 21.01(1)(b): “assuming that the facts as stated in the statement of claim can be proved, is it ‘plain and obvious’ that the plaintiff's statement of claim discloses no reasonable cause of action?” The court also indicates that a pleading (i) should not be struck “if there is a chance that the plaintiff might succeed”, and (ii) should be stuck only if the claim “is certain to fail”.

[29] In R. v. Imperial Tobacco Canada Ltd., [2011] 3 S.C.R. 45, at para. 17, the court (citing Hunt) provides the following formulation of the test:

A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action …. Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial …. [Citations omitted.]

[30] In Imperial Tobacco, at para. 21, the court also states that the approach “must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.” As well, the court indicates that a motion to strike “proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven”: Imperial Tobacco, at para. 22.

[31] On a motion to strike under r. 21.01(1)(b), no evidence is admissible: r. 21.01(2)(b). Consistent with Hunt and Imperial Tobacco, the tenability of the claim is determined based on the pleaded facts, assuming they are true, without reference to external evidence. However, the court is also entitled to consider documents specifically referred to and relied on in the pleading, since they are in effect incorporated into the pleading: see Web Offset Publications Ltd. v. Vickery (1999), 43 O.R. (3d) 802 (C.A.), at p. 803.

[32] Since Mr. Lee commenced his proceeding against the Respondents by way of an application, the Respondents also rely on r. 14.09 as part of the analysis relating to the their motion to dismiss under r. 21.01(1)(b). In Barbra Schlifer Commemorative Clinic v. Canada (Attorney General), 2012 ONSC 5271, at para. 49, leave to appeal refused, 2012 ONSC 5577 (Div. Ct.), Brown J. (as he then was) provided the following caution when applying r. 21.01 in the context of an application, rather than an action commenced by way of statement of claim:

Rule 14.09 provides that an originating process, like a notice of application, may be struck out in the same manner as a statement of claim. I would note, however, that whereas a statement of claim must contain "a concise statement of the material facts on which the party relies for the claim" [r. 26.06(1)], a notice of application need only state "the grounds to be argued, including a reference to any statutory provision or rule to be relied on" [r. 38.04(b)]. The facts supporting an application usually are found in the accompanying affidavit material, not necessarily in the notice of application. Consequently, some degree of caution must be exercised when applying a pleadings-oriented rule, such as Rule 21.01, to a notice of application, making due allowance for the different requirements mandated for the content of those different originating processes.

B. Analysis

[33] The Respondents say that Mr. Lee’s application does not disclose a reasonable cause of action. According to the Respondents, that conclusion is plain and obvious, whether the legal basis for his alleged right to access is (a) PIPEDA or (b) the terms of his employment.

(a) PIPEDA

[34] According to the Respondents, Mr. Lee’s application seeks enforcement of alleged rights to personal information under PIPEDA. The Respondents say that PIPEDA does not apply to the Respondents, nor does PIPEDA create a statutory cause of action enforceable in this court.

[35] In support of their position that Mr. Lee is asserting such a right, the Respondents point to various references to PIPEDA in Mr. Lee’s application. They also note his express reliance on PIPEDA in his first three letters in his August 2018 correspondence with Magna’s counsel.

[36] In response, Mr. Lee says that in the context of his application, he does not rely on PIPEDA to provide him with a right to access his personal information. In both his factum and his oral submissions, he expressly acknowledges that he is not relying on PIPEDA as the basis for his request. Mr. Lee also points to paragraphs 2(f) and 2(g) of his application, in which he refers to a “gap in the legislation” that the federal Privacy Commissioner has identified relating to the “personal confidential information of an employee that is held by a private sector company”.

[37] According to Mr. Lee, as set out in paragraphs 2(j) and 2(k) of his application, he is instead relying on the terms of his employment, including Company policies applicable to all employees, as the basis for his right to request his personal information. In his supporting affidavit, Mr. Lee also refers to the “gap” in legislative coverage of PIPEDA as well as his reliance on the terms of his employment as the basis for his request for access to his personal information.

[38] Mr. Lee also refers to “the Company’s Employee Handbook” (referenced in paragraph 2(k) of the application), which indicates that employees have the right to request their “personal information”. According to Mr. Lee, he included the PIPEDA definition of “personal information” in the next paragraph of the application (paragraph 2(l)) as an indication of the term’s scope. He also notes that in his supporting affidavit, he refers to other unrelated legislation for the same purpose.

[39] On the face of the application, and taking into account the position Mr. Lee has taken in his factum and oral submissions, I am satisfied that Mr. Lee’s application is not asserting or relying on any alleged right to access to his personal information arising under PIPEDA. In these circumstances, I see no reason to further address the question of whether the application discloses a reasonable cause of action based on PIPEDA. However, I will briefly revisit the issues relating to PIPEDA later in these Reasons.

(b) Terms of employment

[40] As already noted, Mr. Lee relies on the terms of his employment as the basis for his request for access to his personal information to the extent set out in the application.

[41] Paragraph 2(j) of the application refers to Mr. Lee’s “employment contract”, his original employment letter dated June 22, 2011 attached to his supporting affidavit. That letter includes the following: “As an employee of the Company, the terms and conditions of employment will be governed by the contents of this letter, the policies and procedures set out in the Company’s Employee Handbook, and such other policies as may be established from time to time.”

[42] Paragraph 2(k) of the application includes an extract from the Company’s Employee Handbook, which states that employees “have a right to request information on the processing of your personal information, to review your information, or to request correction of an error or omission in your information, or under certain circumstances to delete or block the processing of your personal information.”

[43] That passage is an extract from the section of the Employee Handbook entitled “Data Protection and Privacy”, which is an exhibit to Mr. Lee's supporting affidavit. That section of the Handbook indicates (among other things) that (i) the Company respects employees’ privacy, and is committed to compliance with applicable data protection and privacy laws, (ii) as part of the employment relationship, it is necessary to collect, use and process certain personal information about employees, (iii) the Company will do so only for legitimate business purposes, including employee recruiting and selection, performance and attendance management, training, and matters relating to compensation and employee benefits, and (iv) the Company will safeguard and protect employees’ information. In that section of the Handbook, “personal information” is defined as follows:

Personal information includes, but is not limited to, general contact information about you and your family job/position related information, medical information, where appropriate, and information relating to compensation.

[44] Mr. Lee’s supporting affidavit also refers to (and attaches as exhibits) other aspects of the Company’s human resources policies and procedures (including the Employee Handbook) that are not specifically referenced in the application itself. These other policies and procedures include (i) the Company’s “Workplace Violence and Harassment Policy” and related procedures, and (ii) a section of the Employee Handbook that addresses “false and/or bad faith” harassment complaints.

[45] Under the Company’s Workplace Violence and Harassment Policy, the Company commits to preventing workplace violence and harassment in order to provide a safe and healthy workplace for all employees. The policy includes the following: (i) all employees are encouraged to raise any concerns or incidents of workplace violence and harassment; (ii) all complaints will be kept confidential to the fullest extent possible; (iii) management pledges to investigate and deal with all incidents and complaints of workplace violence in a fair and timely manner; (iv) no employee will be adversely affected as a result of the good faith reporting of a policy violation or participation in the investigation of such a report; and (v) the Company is committed to enforcing the policy and will take reasonable security measures to safeguard the workplace and the well-being of employees. A related “Workplace Violence and Harassment Procedure” also includes the following:

The Human Resources Manager, or where there is a Conflict of Interest, the General Manager will facilitate a thorough investigation of allegations of workplace violence and harassment in a prompt, sensitive and impartial manner. All information collected during an investigation will remain confidential and disclosed only as required to the parties involved. [Emphasis added.]

[46] Mr. Lee’s affidavit also refers to a passage from the Handbook, under the subheading “What Isn’t Harassment or Discrimination”. That section of the Handbook includes the following:

While most harassment and discrimination complaints are raised in good faith, this is not always the case. On rare occasions, harassment and/or discrimination complaints are filed for inappropriate and vexatious purposes. Given the serious impact that allegations of this nature can have on personal and professional reputations, submitting a false and/or bad faith claim of harassment or discrimination is a very serious matter. Following a comprehensive investigation, should the evidence conclude that harassment or discrimination allegations have been made in bad faith, disciplinary action may be taken.

[47] Mr. Lee’s affidavit also refers to (and attaches as an exhibit) the “Employee’s Charter”, which confirms the Company’s commitment to “an operating philosophy based on fairness and concern for people.” The Employee’s Charter provides for a “Hotline” to facilitate communication of employee concerns and complaints. The charter concludes as follows: “The Hotline is committed to investigate and resolve all concerns or complaints and must report the outcome to Magna’s Global Human Resources Department.”

[48] With that background, Mr. Lee argues that it is not plain and obvious that his application does not disclose a reasonable cause of action. Rule 14.05(3)(d) permits the bringing of an application to determine rights that depend on the interpretation of a contract. The relief that Mr. Lee claims is based on the interpretation of the terms of employment under his employment contract with the Company. Mr. Lee’s employment contract incorporates the Company’s policies and procedures, including the Company’s Employee Handbook. The Handbook gives Mr. Lee rights relating to his personal information, including the right to information on the processing of his personal information, the right to review his personal information, and the right to request the correction of an error or omission in his personal information. Mr. Lee has requested access to his personal information, both by way of “formal complaint” letters through the employee hotline and through counsel. Through its legal counsel, the Company has refused to provide that information. Because of that refusal, Mr. Lee is unable to confirm that the Company fairly investigated the alleged harassment complaint against Mr. Lee that led to the April 2018 warning letter, as the Company is required to do under Company policy. He is also unable to confirm that the Company has fairly investigated the matters set out in his two “formal complaint” letters submitted through the employee hotline, as the Company is required to do under the Employee Charter. In these circumstances, Mr. Lee says that it is not plain and obvious that his application has no reasonable prospect of success.

[49] The Respondents argue that it is plain and obvious that Mr. Lee’s application does not disclose a reasonable cause of action. While acknowledging that under Company policy Mr. Lee has the right to request access to his personal information, the Respondents say that Mr. Lee has already been offered access to the information to which he is entitled, that is, the personal information contained in his employee file. He has not availed himself of that opportunity. According to the Respondents, the Company’s policies and procedures do not provide Mr. Lee with the open-ended, generalized access right that he demands.

[50] Among other things, the Respondents also say it would not be consistent with the confidentiality requirements of the Company’s Workplace Violence and Harassment Policy to disclose the identity of the two persons who advised the alleged harassment complainant. For the protection of those involved in the investigation, the policy provides that information collected during an investigation will remain confidential and disclosed only as required to the parties involved. Disclosure of the identity of those persons would not be consistent with the Company’s obligation to keep their personal information confidential and is not necessary to ensure fairness to Mr. Lee.

[51] In all the circumstances, the Respondents say that it is plain and obvious that Mr. Lee’s application has no reasonable prospect of success. Accordingly, the Respondents submit that the court should exercise its authority under r. 21.01(1) to strike out Mr. Lee’s application without leave to amend, with the result that judgment would issue in the Respondents’ favour.

[52] I agree with the Respondents, but in part only. In my view, it is plain and obvious that Mr. Lee’s rights relating to his personal information (as set out in the Company’s policies) do not entitle him to access of “all documents containing Dik Lee’s personal information” as comprehensively particularized in paragraph 1(a) of the application. Mr. Lee’s right to information under the Company’s policies (specifically the relatively narrow right to access under the “Data Protection and Privacy” section of the Employee Handbook) is on its face much more circumscribed than the access that Mr. Lee seeks in paragraph 1(a). As well, no other basis has been suggested for the court’s authority to grant the additional order under paragraph 1(b), which would include an order dictating the permissible cost per page for photocopies.

[53] In these circumstances, I am prepared to strike in its entirety the prayer for relief in paragraph 1 of the application. The prayer for relief gives no real indication of the information to which Mr. Lee is seeking to obtain access. If all Mr. Lee is really seeking is disclosure of the two “advisors” to the alleged harassment complainant (as the Company contends), a court considering the merits may well consider the application to be a colourable attempt to obtain disclosure that is not justified on either legal or policy grounds. If there is other specific disclosure he is seeking, it should not be left to the court figure out what it is.

[54] That being said, I am not prepared to go as far as striking the prayer for relief without leave to amend. Among the distractions in the “chaff” of the application, I am left with a lingering concern that Mr. Lee may have a meritorious claim against the Company. (In saying that, I recognize that Mr. Lee has the advantage of the requirement that I must for this purpose assume the truth of his assertions.) In my view, there is good reason to doubt that an application seeking disclosure of personal information is an advisable way to advance any substantive claim that Mr. Lee may have. A proceeding that advances a substantive claim may well provide a more focused vehicle for considering whether disclosure should be made of the specific information Mr. Lee may be seeking. However, based on the information set out in the application (including documents referred to in the application), I am not prepared to find that an application that more specifically delineates the information Mr. Lee is seeking (based on the terms of his employment) has “no reasonable prospect of success” (Imperial Tobacco, at para. 21) or is “certain to fail” (Hunt, at p. 980). Nevertheless, Mr. Lee would be well advised to carefully consider (preferably with the benefit of legal advice) whether taking that route serves his interests.

III. Lack of jurisdiction

[55] Does the court lack the jurisdiction over the subject matter of the application?

[56] Given the conclusions I have already reached above, it may be considered unnecessary to further address the alternate basis for relief the Respondents advance. In light of the parties’ submissions on this issue, however, I thought it worthwhile to provide some brief comments.

[57] Under r. 21.01(3)(a), a defendant may move to have an action stayed or dismissed on the ground that the court has no jurisdiction over the subject matter of the action. Like r. 21.01(1)(a) relating to a motion to strike out a pleading for failing to disclose a reasonable cause of action, the wording of r. 21.01(3)(a), viewed in isolation, relates to an action, not an application.

[58] Rule 14.09 makes it clear that a party to an application may bring a motion to strike under r. 21.01(1)(a), since r. 14.09 permits the striking out of an “originating process that is not a pleading”. I am also prepared to accept that a respondent may bring a motion to stay or dismiss an application for lack of jurisdiction, based on one or more of the following bases: r. 14.09; the court’s general authority to stay a proceeding under s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43; or the court’s inherent jurisdiction (see Hunt, at pp. 967-968).

[59] As previously noted, the Respondents advance the position that Mr. Lee’s application seeks the enforcement of alleged rights to personal information under PIPEDA. The Respondents say that PIPEDA does not apply to them. They also say that even if PIPEDA applied to them, disputes arising out of the application and interpretation of PIPEDA are within the exclusive jurisdiction of the Federal Privacy Commissioner and the Federal Court. Accordingly, this court would have no jurisdiction over any such dispute.

[60] As previously noted, I accept Mr. Lee’s position that his application does not assert or rely on any alleged right to access his personal information arising under PIPEDA. Therefore, I have not further addressed the question of whether the application discloses a reasonable cause of action based on PIPEDA. I agree with the Respondents, however, that this court would have no jurisdiction to adjudicate disputes arising out of the application and interpretation of PIPEDA. Those matters are within the exclusive jurisdiction of the Federal Privacy Commissioner and the Federal Court: see Yakobi v. Canadian Imperial Bank of Commerce, 2007 BCSC 923, at para. 113.

IV. Conclusion

[61] Accordingly, an order will issue as follows:

1. The prayer for relief in paragraph 1 of the Application is struck out in its entirety.
2. The Applicant has leave to amend the Application within six months, failing which the Respondents may move to dismiss the Application without notice to the Applicant.
3. Costs of this motion shall be determined based on written submissions.

[62] If the parties cannot agree on costs, the Respondents may serve and file brief written submissions (not to exceed three pages) together with a costs outline within 21 days. The Applicant may respond by brief written submissions within 14 days. The Respondents may reply by brief written submissions within seven days. If no submissions are received within the specified timeframe, the parties will be deemed to have settled costs.

The Honourable Mr. Justice R. A. Lococo

Released: January 7, 2019