Law Times

Law Times • November 7, 2016 Page 5 www.lawtimesnews.com NEWS Federal court sides with lawyer in privacy dispute BY ALEX ROBINSON Law Times T he Federal Court of Appeal has ordered the privacy commissioner to reconsider its find- ing that a Toronto lawyer had violated the Privacy Act. The Office of the Privacy Commissioner had found Helen Daley, of Wardle Daley Bern- stein Bieber LLP, in violation of the act, despite having never alerted her to the allegations against her. In Daley v. Canada (Attor- ney General), Federal Court Justice Danièle Tremblay-Lamer said the OPC had a responsibil- ity to let Daley know about the proceedings. "The OPC had a common law duty to notify the applicant of the complaint even if she was not a party to it because she had a direct and significant interest to the outcome," Tremblay-Lamer wrote in the decision. "The OPC's report of findings affected her professional reputa- tion as a lawyer and she should have been given the opportunity to make representations to de- fend her interests." The complaint stemmed from legal proceedings against a Canada Revenue Agency inves- tigator, who had retained Daley. Marc Holterman was the subject of a Canada Revenue Agency investigation in 2002 and was later acquitted. He took legal action against the investi- gator in a number of regulatory and civil tribunals. Holterman also sued a wit- ness in the case against him, the decision said. Daley shared the transcript of an interview with the witness conducted by her client with the witness's lawyer. Daley's shar- ing of the transcript was what sparked the complaint to the pri- vacy commissioner against her. Daley claimed she did not know that a complaint had even been filed against her until she learned through a partner at her law firm that she had already been found in violation of the Privacy Act in 2013. She then contacted the OPC to request that it reopen its in- vestigation and to demand a chance to respond to the alleg- ations. She noted that the tran- script she had transmitted was public in nature. The OPC then invited Daley to submit further information, but it later told her what she submitted was insufficient to re- open the investigation. The OPC argued that the transcript included extensive information about the wit- ness's business relationship with Holterman, as well as his opin- ions of him, and that this met the definition of personal infor- mation outlined in the act. One of the central questions to Daley's appeal was whether part of the Income Tax Act — paragraph 241 (3)(b) — should apply to the information she shared. The section allows for the disclosure of taxpayer informa- tion in legal proceedings related to the enforcement of the act. Daley argued that the disclo- sure was authorized under the Income Tax Act. The privacy commissioner's office, however, said that the CRA could not rely on the Income Tax Act, as disclo- sure had been made in relation to a civil proceeding for damages arising out of business deadlines. Tremblay-Lamer rejected the OPC's characterization of the legal proceedings as "misleading" and determined that the OPC erroneously interpreted the rel- evant part of the Income Tax Act. She added that the court did not even need to consider whether the transcript was al- ready public or not because of her determination that the In- come Tax Act should be applied. David Fraser, a privacy law- yer with McInnes Cooper LLP, says the decision clearly com- municates to the OPC that it has an obligation to conduct its proceedings with principles of procedural fairness and natural justice in mind. "While the government insti- tution is the one regulated by the Privacy Act, others — includ- ing employees and contractors — have interests that are impli- cated," says Fraser, who was not involved in the case. Daley also argued that she was entitled to be notified of the complaint against her as it could harm her professional reputation. The OPC said that it did not have a duty to notify Daley as its findings in the mat- ter were directed at the CRA and she was referred to only in her capacity as acting on behalf of the agency. The OPC also noted that the CRA defended Daley's interests in the proceedings and that its report in the matter had not been made public. The OPC pointed to provi- sions in the Privacy Act that say no one other than the govern- ment institution concerned is entitled to make representations. Tremblay-Lamer, however, said that provisions do not make the OPC exempt from notifying third parties. "The provisions only state that the government institution must be notified, and that no one else is entitled to make representa- tions as of right," she wrote. She added that the provisions do not displace common law duty to notify those who could be "sig- nificantly and directly affected by the decision." Robert Centa, the lawyer who represented Daley on her appeal, says the decision serves as a reminder to administrative decision-makers to consider the people who may have their rights affected by a decision. "It's an important reaffirma- tion of a long-standing adminis- trative law principle that where a person's rights, privileges or in- terests are affected by an admin- istrative decision-maker, at the most basic level, they're entitled to notice and the opportunity to respond," says Centa, who is the managing partner of Paliare Roland Rosenberg Rothstein LLP. LT Robert Centa says a recent ruling serves as a reminder to administrative decision- makers to consider people who may have their rights affected by a decision. MATTER CREDENTIALS TORONTO I BARRIE I HAMILTON I KITCHENER 1-866-685-3311 I www.mcleishorlando.com A Noticeable Difference ™ Choosing a personal injury lawyer is one of the most important decisions an injured person will make. Help your client ask the right questions: Is the lawyer? Untitled-4 1 2015-02-17 10:59 AM

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