PART 5 - Reviews and Complaints

Reviews by the Commissioner

Right to ask for a review

52. (1) A person who makes a request to the head of a public body, other than the commissioner, for access to a record or for correction of personal information may ask the commissioner to review any decision, act or failure to act of the head that relates to that request, including any matter that could be the subject of a complaint under section 42(2).

(2) A third party notified under section 24 of a decision to give access may ask the commissioner to review any decision made about the request by the head of a public body, other than the commissioner.

How to ask for a review

53. (1) To ask for a review under this Division, a written request must be delivered to the commissioner.

(2) A request for a review of a decision of the head of a public body must be delivered within

(a) 30 days after the person asking for the review is notified of the decision, or

(b) a longer period allowed by the commissioner.

(3) The failure of the head of a public body to respond in time to a request for access to a record is to be treated as a decision to refuse access to the record, but the time limit in subsection (2)(a) for delivering a request for review does not apply.

Notifying others of review

54. On receiving a request for a review, the commissioner must give a copy to

(a) the head of the public body concerned, and

(b) any other person that the commissioner considers appropriate.

Mediation may be authorized

55. The commissioner may authorize a mediator to investigate and to try to settle a matter under review.

Inquiry by commissioner

56. (1) If the matter is not referred to a mediator or is not settled under section 55, the commissioner must conduct an inquiry and may decide all questions of fact and law arising in the course of the inquiry.

(2) An inquiry under subsection (1) may be conducted in private.

(3) The person who asked for the review, the head of the public body concerned and any person given a copy of the request for a review must be given an opportunity to make representations to the commissioner during the inquiry.

(4) The commissioner may decide

(a) whether representations are to be made orally or in writing, and

(b) whether a person is entitled to be present during or to have access to or to comment on representations made to the commissioner by another person. [Order 12]

(5) The person who asked for the review, the head of the public body concerned and any person given a copy of the request for a review may be represented at the inquiry by counsel or an agent.

(6) An inquiry into a matter under review must be completed within 90 days after receiving the request for the review. [Order 28]

Burden of proof

57. (1) At an inquiry into a decision to refuse an applicant access to all or part of a record, it is up to the head of the public body to prove that the applicant has no right of access to the record or part. [Order 14, Order 22]

(2) However, if the record or part that the applicant is refused access to contains personal information about a third party, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party's personal privacy. [Order 17, Order 24, Order 27]

(3) At an inquiry into a decision to give an applicant access to all or part of a record containing information that relates to a third party,

(a) in the case of personal information, it is up to the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party's personal privacy, and

(b) in any other case, it is up to the third party to prove that the applicant has no right of access to the record or part.

[Order 2, Order 28]

Commissioner's orders

58. (1) On completing an inquiry under section 56, the commissioner must dispose of the issues by making an order under this section.

(2) If the inquiry is into a decision of the head of a public body to give or to refuse to give access to all or part of a record, the commissioner must, by order, do one of the following:

(a) require the head to give the applicant access to all or part of the record, if the commissioner determines that the head is not authorized or required to refuse access;

(b) either confirm the decision of the head or require the head to reconsider it, if the commissioner determines that the head is authorized to refuse access;

(c) require the head to refuse access to all or part of the record, if the commissioner determines that the head is required to refuse access.

(3) If the inquiry is into any other matter, the commissioner may, by order, do one or more of the following:

(a) require that a duty imposed by this Act or the regulations be performed;

(b) confirm or reduce the extension of a time limit under section 10;

(c) confirm, excuse or reduce a fee, or order a refund, in the appropriate circumstances, including if a time limit is not met;

(d) confirm a decision not to correct personal information or specify how personal information is to be corrected;

(e) require a public body to stop collecting, using or disclosing personal information in contravention of this Act;

(f) require the head of a public body to destroy personal information collected in contravention of this Act. [Order 20]

(4) The commissioner may specify any terms or conditions in an order made under this section.

(5) The commissioner must give a copy of an order made under this section to

(a) the person who asked for the review,

(b) the head of the public body concerned,

(c) any person given notice under section 54, and

(d) the minister responsible for this Act.

Duty to comply with orders

59. (1) Not later than 30 days after being given a copy of an order of the commissioner, the head of the public body concerned must comply with the order unless an application for judicial review of the order is brought before that period ends.

(2) If an application for judicial review is brought before the end of the period referred to in subsection (1), the order of the commissioner is stayed from the date the application is brought until a court orders otherwise.

Complaints About and Reviews of Decisions on Information in the Commissioner's Records

Adjudicator to investigate complaints and review decisions

60. (1) The Lieutenant Governor in Council may designate a person who is a judge of the Supreme Court to act as an adjudicator and

(a) to investigate complaints made against the commissioner as head of a public body with respect to any matter referred to in section 42(2), and

(b) to review, if requested under section 62, any decision, act or failure to act of the commissioner as head of a public body.

(2) An adjudicator may retain the services of any persons necessary to assist the adjudicator in performing his or her functions under this Act.

(3) The government may pay out of the consolidated revenue fund,

(a) to an adjudicator, the expenses a judge is entitled to receive under section 57(3) of the Judges Act (Canada) while acting as an adjudicator, and

(b) to a person whose services are retained under subsection (2), remuneration for those services.

Powers, duties and protections of adjudicator

61. (1) For the purposes of section 60, an adjudicator has the powers, duties and functions given to the commissioner by sections 42(2)(a) to (d), 43, 44 and 47(1), (2)(a) and (3) to (5).

(2) Sections 45, 46, 48 and 50 apply for the purposes of an investigation, inquiry or review by an adjudicator.

Right to ask for a review

62. (1) A person who makes a request to the commissioner as head of a public body for access to a record or for correction of personal information may ask an adjudicator to review any decision, act or failure to act of the commissioner that relates to the request, including any matter that could be the subject of a complaint under section 42(2)(a) to (d).

(2) A third party notified under section 24 of a decision to give access may ask an adjudicator to review any decision made about the request by the commissioner as head of a public body.

How to ask for a review

63. (1) To ask for a review under this Division, a written request must be delivered to the minister responsible for this Act.

(2) A request for a review of a decision of the commissioner must be delivered within

(a) 30 days after the person asking for the review is notified of the decision, or

(b) a longer period allowed by the adjudicator.

(3) Section 53(3) applies if the commissioner fails to respond in time to a request for access to a record.

Notifying others of review

64. On receiving a request for a review, the minister responsible for this Act must promptly forward the request to an adjudicator and must give a copy to

(a) the commissioner, and

(b) any other affected person.

Conduct and outcome of the review

65. (1) An adjudicator has the powers and duties given to the commissioner by sections 55 and 56(1) and (2), and sections 56(3) to (6) and 57 apply to an inquiry conducted by the adjudicator.

(2) On completing an inquiry, an adjudicator has the same duty to dispose of the issues, the same powers to make orders and the same duty to notify others of those orders, as the commissioner has under section 58(1), (2), (3)(a) to (d), (4) and (5).

(3) Section 59 applies to an order of an adjudicator.