May 31, 2020

BC OIPC dismisses privacy complaint about conduct of tribunal litigation

Mary- Helen Wright Law Corporation (Pacific Law Group) (Re), 2020 BCIPC 21 (CanLII)

On May 1st the British Columbia Office of the Information and Privacy Commissioner dismissed a complaint that alleged a law firm and its client violated BC PIPA by serving a seven-part application for non-party production on seven non-parties to a Human Rights Code proceeding (thereby disclosing more personal information than would have been disclosed in seven separate applications).

Most significantly, the OIPC held that the PIPA provision that states it does not “limit the information available by law to a party to a proceeding” does not limit the OIPC’s jurisdiction and, rather, “merely provides reassurance that PIPA does not restrict the availability of information to a party to a proceeding where that information is available by law.” The OIPC therefore needed to dismiss the complaint on other grounds – in this case based on finding of deemed implied consent and a finding that the disclosure was “required or authorized by law.”

The OIPC did come back to the “party to a proceeding” provision – section 3(4) – in dismissing the complainant’s proportionality argument. It said:

[77] As I see it, the actions of parties in a court or tribunal proceeding – and whether those actions were necessary or appropriate in light of that forum’s governing law and procedures – is a matter best judged by that court or tribunal. I find support for this approach in s. 3(4) of PIPA. Section 3(4) states that PIPA does not limit the information available by law to a party to a proceeding. This provision ensures that PIPA does not interfere with, or override, statutory or common law processes or rules that make information available to a party to a proceeding.

[78] Section 3(4) of PIPA requires that I interpret and apply PIPA in a way that does not limit the information available to PLG as a party to the legal proceedings before the Tribunal. In essence, the complainant is calling upon PIPA to censure, regulate and/or impose restrictions on what a party to a Tribunal proceeding can do to obtain information or evidence under the Tribunal’s Rules. I believe that a decision on my part prohibiting a party to a Tribunal proceeding from disclosing personal information in an application made pursuant to Rule 23(2) would, effectively, limit the information available by law to that party and run contrary to s. 3(4).

[79] Thus, the issue of whether in this particular Tribunal proceeding the respondents complied with the Rules regarding applications for non-party disclosure is a matter that should be left to the Tribunal to decide. The Tribunal is an administrative tribunal empowered by statute to create the Rules that govern its proceedings and to enforce compliance with those Rules. Given it is the adjudicative forum where the complainant pursued her human rights complaint, it is best placed to understand the full context of what took place during its proceedings and to referee the parties’ behaviour.

This text is helpful, though the OIPC could have left litigants wider berth by reading section 3(4) as creating a form of privilege.

[Note that the HRTO did sanction the client (respondent) for serving its seven-part application by awarding the complainant $5,000 in costs.]