The BC Supreme Court held in, Harrison v. British Columbia (Information and Privacy Commissioner), 2008 BCSC 411, that the standard of review to be applied to decisions of the Privacy Commissioner is correctness.

The case concerns an individual hired by a Provincially funded child care service. During the emploment background check a report came up concerning allegations that the individual had abused his daughter. He was dismissed from his employment on the basis of the report. The information in the report was vague and on its face unreliable. The issue turned on whether the employer was in breach of section 28 of FIPPA:

If

(a) an individual’s personal information is in the custody or under the control of a public body, and

(b) the personal information will be used by or on behalf of the public body to make a decision that directly affects the individual,

the public body must make every reasonable effort to ensure that the personal information is accurate and complete.

On Judicial Review the Court held that this section had not been considered by the Privacy Commissioner and that the standard of review of the Privacy Commissioner in such matters is correctness. Given that the Privacy Commissioner failed to consider a critical statutory section it would seem to me that a patently unreasonable standard of review would have been made out here as well.

Mr. Justice Pitfield states:

[70] The provisions of the Administrative Tribunals Act, S.B.C. 2003, c. 47, do not apply to the Office of the Commissioner. The standard or review must therefore be determined by reference to the common law. In my opinion the conclusions the Commissioner reached with respect to the accumulation, use and disclosure of personal information must be correct. Reasonableness is not the appropriate standard. There is too much at stake in the context of damage to personal reputation to permit any other conclusion. The consequences of an incorrect decision may severely and inappropriately affect a complainant’s career as in this case. In the face of such adverse consequences, the Commissioner’s decision warrants little deference.

[71] That correctness rather than reasonableness is the lens through which the Commissioner’s actions and ruling in this case must be observed is further supported by the fact that there is no privative clause in FIPPA, it is not apparent that the Commissioner has special expertise of a kind that should discourage judicial intervention, and the nature of the question, which is one of law, or at worst one of mixed law and fact, strikes at the core of personal rights and the need to ensure their protection in the face of legislation such as that embodied in FIPPA: see Dunsmuir v. New Brunswick, 2008 SCC 9.

The Privacy Commissioner was orderd to reconsider the matter in light of section 28 of FIPPA