PRIVACY |
Tunian v. Canada (Chairman of the Immigration and Refugee Board)
T-691-03
2004 FC 849, Martineau J.
10/6/04
7 pp.
Judicial review of respondent's decision not to disclose draft reasons (notes) prepared by member of Refugee Protection Division of Immigration and Refugee Board (Board)--Board member dictated notes after hearing adjourned using same equipment used to record proceedings--Dictation transcribed but Board not retaining copy of transcription as of opinion belonged to Board member--Decision not to disclose notes object of complaint to Privacy Commissioner of Canada, who determined notes not under Board's control, and therefore not subject to disclosure--Privacy Act (Act), s. 12(1)(b) giving every Canadian citizen, permanent resident right to access to personal information about individual under control of government institution--In Canada (Privacy Commissioner) v. Canada (Labour Relations Board) (2000), 257 N.R. 66, Federal Court of Appeal held notes made by quasi-judicial decision makers in course of carrying out independent adjudicative function not in control of administrative tribunal but, rather, in control of member himself--Underlying reasoning in both Trial ([1996] 3 F.C. 609) and Appeal decisions in Canada (Privacy Commissioner) applies here-- Deference should generally be accorded to independence of decision makers exercising adjudicative function--Like Canada Labour Relations Board, Board herein quasi-judicial tribunal --Members are Governor in Council appointees, not employees of Board--They exercise independent adjudicative function--Board not requiring Board member to keep draft reasons or notes but encouraging members to keep notes--All notes, including draft reasons, prepared by Board members considered to belong to Board member--Mere use of Board's equipment to record notes not making them part of official record--Taking into account quasi-judicial nature of Board and context in which made, notes not under control of Board and likely exempt from disclosure under Act, s. 22(1)(b), as disclosure would compromise operation of Board-- Application dismissed--Privacy Act, R.S.C., 1985, c. P-21, ss. 12(1)(b), 22(1)(b).