Canada (Privacy Commissioner) v. Canada (Labour Relations Board), (2000) 25 Admin. L.R. (3d) 305 (Fed. C.A.)

June 2014

Summary: The notes taken by a member of the Canada Labour Relations Board (“Board”) during a hearing are not subject to the Privacy Act as they are not under the “control” of the Board.

Facts: An employee who filed a duty of fair representation complaint with the Board later requested a copy of all records held by the Board containing his personal information. The Board produced most of its records, but refused to produce the hand-written notes of the three Board members who heard his complaint. The employee complained to the Privacy Commissioner, who concluded that the Board should have to disclose these hand-written notes. On application to the Federal Court, the Federal Court disagreed. The Federal Court judge engaged in a lengthy analysis of the concepts of judicial independence and adjudicative privilege, and concluded that the records did not have to be produced on several grounds. The Privacy Commissioner appealed.

Result: The Federal Court of Appeal dismissed the appeal, and did not require the Board to produce the hand-written notes of its members.

Decision: The Court of Appeal focused on the narrow issue of whether the hand-written notes were under the “control” of the Board. The Court of Appeal noted that Board members are not employees of the board: they are Governor-in-Council appointees with an adjudicative function that is performed independently of other members of the Board and of a government institution. Board members are not obliged to take notes (although they always do), their notes are not contained in the Board’s record-keeping system, and the Board members can destroy them at any time. Further, the Court of Appeal noted that any attempt by the Board to “control” these notes — by requiring members to take notes, prescribing the form of the notes, or requiring that notes be deposited with the Board — would be a breach of the principles of procedural fairness respecting the independence of adjudicative decision-makers. Put simply, Board members are independent from the Board and therefore their notes are not under the “control” of the Board.