Sep 17, 2019

Making Ultra Vires Recommendations Mandatory - at the request of the Information and Privacy Commissioner of the NWT

Government of the Northwest Territories (Re), 2009 CanLII 88075 (NWT IPC)

So, let me paint the picture . . . on February 12, 2009, the Information and Privacy Commissioner of the Northwest Territories got a complaint.

On September 2, 2009, the Information and Privacy Commissioner of the Northwest Territories issues Review Recommendation 09-081 in response to that complaint.

You might note that September is more than 6 months after February.

Anyway, the Review Recommendation included a recommendation that a prosecution be commenced under the Access to Information and Protection of Privacy Act.

And . . .

Such a prosecution was not commenced.

And why not?

Well, the prosecution would be by way of Summary Conviction (s. 59 of the Access to Information and Protection of Privacy Act), and unfortunately, the Summary Conviction Procedures Act provides at s.3 that:

“Unless an enactment provides otherwise, no proceeding in respect of an offence may be commenced more than six months after the time the subject matter of the proceedings arose.”

Simply put, the recommendation of the Information and Privacy Commissioner of the Northwest Territories was too late (ultra vires) to allow the commencement of a proceeding in respect of a Summary Conviction offence.

And then what?

Nothing.

Nothing for several years.

And then . . .

Well, this is the odd part . . . the Information and Privacy Commissioner of the Northwest Territories thinks her recommendations should be mandatory, unless overruled by a justice of the superior courts. She wants changes to the Access to Information and Protection of Privacy Act to the effect that:

“If a public body wishes to disregard those recommendations [. . .] it must ask the court for an order to allow it to do so.”

- Annual Report 2017/2018, Information and Privacy Commissioner of the Northwest Territories p. 43.


Let’s review the effect of these changes as if they were applied in the exact context of this fact scenario:

  • The Information and Privacy Commissioner of the Northwest Territories gets a complaint.
  • Six months later, the ability to commence a Summary Conviction proceeding expires.
  • Despite the expiry of the limitation period, the Information and Privacy Commissioner of the Northwest Territories issues the (ultra vires) recommendation to prosecute:

SCENARIO 1: The GNWT prosecutes and learns at trial that the action is ultra vires.

SCENARIO 2: Being unable to commence a proceeding, the GNWT must apply to court to ask for a ruling that they are unable to commence a proceeding, despite the mandatory recommendation to prosecute.


Conclusion:

Hey, it was 2009 . . . maybe the Information and Privacy Commissioner of the Northwest Territories knows better now.

Maybe she doesn’t.

Right now, an ultra vires recommendation of the Information and Privacy Commissioner can be rejected as being void ab initio – that is, “as if it does not exist”.

In the future, if the Information and Privacy Commissioner gets her way, it might require a court order.

Sounds expensive.

But, hey, it's not her money . . . she won't lose a cent.