The Office of the Information and Privacy Commissioner for British Columbia v Airbnb Ireland UC, 2024 BCCA 333 (September 25, 2024)
Category: Application of the reasonableness standard.
Context: From the Court’s summary:
The Information and Privacy Commissioner (the “IPC”) appeals from the judicial review of its decision requiring the City to release certain requested information about short-term rental accommodation licensees gathered by the City pursuant to its agreements with Airbnb. The judge set aside and remitted the IPC’s decision and ordered that the IPC give notice to licensees in advance of its reconsideration. The IPC submits that the judge erred in finding that the adjudicator’s interpretation of s. 22 of the Freedom of Information and Protection of Privacy Act was unreasonable, and erred in finding that notice of the request should have been provided to all licensees.
Issue: Is the Adjudicator’s interpretation unreasonable?
Holding and Analysis: The Court (per Skolrood JA) concludes that the Adjudicator’s interpretation of s.22 was unreasonable. Section 22 provides that the “head of a public body must refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party’s personal privacy.” At issue was disclosure of information concerning addresses and residences. Some of the short-term rental addresses were both (1) home addresses and also (2) business addresses, constituting “contact information” that “enable[s] an individual at a place of business to be contacted and [which] includes the…business address…of the individual” [18]. The Adjudicator concludes that “[t]he fact that a location is a home does not mean that it cannot also be a business if the context reveals that is how it is being used” [18, para 119 of Adjudicator reasons]. Since this business information is a requirement of obtaining a licence to operate a business at this address, the Adjudicator held that the information was subject to disclosure under s.22. In this sense, the Adjudicator adopted a “binary” approach, that drew a clean distinction between personal and business information.
Skolrood JA, however, finds the interpretation conducted by the Adjudicator to be “overly formalistic” [62]. The problem is that the legislation, as drafted, does not necessarily enshrine the binary approach. The reasons adopted by the Adjudicator did not “grapple with the question of whether and how the personal nature of [the business information], and the important privacy interests implicated, were somehow lost or diminished. Put this way, the Adjudicator failed to justify the chosen interpretation because she failed to properly consult the purpose of the provision—the protection of personal privacy [62]. This purpose mandated that the Adjudicator justify her interpretation of the text in light of the purpose. That justification was missing, here.
This highlights an important point about Vavilov. Administrators must justify their interpretations of statutes not simply by applying statutory definitions. The decision-maker must understand how that interpretation not only reflects the text, but the text understood in light of its purposes. Sometimes, it may not be clear how purpose should inform interpretation—but that is why it is important for administrators to justify their interpretations, showing how and why the purpose leads to particular results. That demonstration was absent here.
Beniuk v Alberta (Director of Safe Roads), 2024 ABKB 567 (September 25, 2024)
Category: Remedy.
Context: Beniuk seeks judicial review of a SafeRoads adjudicator decision that upheld a Notice of Administrative Penalty agaisnt the applicant, under the Traffic Safety Act. Beniuk argued that the police conducted their investigation in an unfair manner that breached her rights under ss. 8, 9, and 10(b) of the Charter.
Issue: There are several issues in this application, but of interest to us is the Court’s decision on remedy.
Holding and Analysis: The Court concludes that the “Adjudicator reached the only reasonable and inevitable outcome in this case, confirmation of the NAP…” [80], and for that reason confirms the NAP, declining to remit [84]. This is interesting: as the Court notes, “In the SafeRoads context, while inevitable outcome cases often involve inevitable cancellation of NAPs, there is no reason that, in appropriate but rare cases, the same cannot apply to inevitable confirmation of NAPs” [79]. In this sense, the decision to confirm an NAP without remitting could be said to deprive an applicant of another kick at the can. But in this case, perhaps it was inevitable: as the Court says, “the impugned police conduct did not result in manifest unfairness, breach of natural justice or abuse of process…” [82(e)].
Nijjar v. Canada (Citizenship and Immigration), 2024 FC 1501 (September 24, 2024)
Category: Application of the reasonableness standard.
Context: The applicant sought judicial review of a Refugee Appeal Division [RAD] decision, which rejected his claim for refugee protection.
Holding and Analysis: In rejecting the applicant’s arguments, the Court (per Gascon J) offers some comments on the common argument that an administrative decision is “microscopic” in nature:
[41] On a final note, in his submissions, counsel for Mr. Singh Nijjar kept repeating that the RAD’s analysis was “microscopic”. I do not agree. As I discussed in Adeleye v Canada (Citizenship and Immigration), 2022 FC 81 [Adeleye] and Paulo v Canada (Citizenship and Immigration), 2020 FC 990 [Paulo], an administrative decision maker’s approach cannot be called “microscopic” (and result in a reviewing court’s intervention) unless it clings to issues that are irrelevant or peripheral to the claim of the refugee claimant (Adeleye at para 30; Paulo at paras 59–61). Moreover, an analysis does not become “microscopic” or overzealous because it happens to be exhaustive, focused, and comprehensive. Quite the contrary, such an approach reflects the rigour that applicants (and the courts) have the right to expect from an administrative decision maker’s analysis. I would add that a decision maker must in fact demonstrate such rigour in order to satisfy the requirement for a “justified” decision established in Vavilov. An administrative decision maker’s analysis only veers towards being “microscopic” when it delves into peripheral issues and examines contradictions that are insignificant or irrelevant to the purpose of the refugee claim. This is clearly not the situation here.
Good comments.
Disclaimer: Nothing in the SEAR is legal advice. The SEAR is not designed to be comprehensive. It is designed to collect some cases that I believe are interesting to practitioners and students, and to provide my quick thoughts. Not all of the cases presented are fully analyzed ie) I’ve selected the most relevant issues in some of the cases. Please complement the SEAR with your own research and study. Any mistakes are my own