Information privacy constitutes an important consideration for any sector in the economy. Issues pertaining to information privacy present various challenges to administrative law. This is because it is often difficult to determine the extent to which private information should be made accessible. Private information is always made accessible when it is legally deemed that such information could be crucial to towards the prevention of a risk or to prevent malpractices. When private information is made public, a company or an organization is always left vulnerable in terms of competition or due to negative publicity that may ensue. The Alberta Health Information Act has provision that allows individuals to:
obtain copies of all records in the custody or under the control of boards of approved hospitals, the operator of a nursing home, a provincial health board, a regional health authority, a community health council, the Alberta Cancer Board, a health services provider, a pharmacist, and a licensed pharmacy subject to certain exceptions listed in the Act. (Athabasca University)
With regard to the powers that the act bestows upon the commissioner, it is observable that the act favors an inquisitorial process. Since information privacy issues are always sensitive to the point that the method used to collect evidence can compromise the whole objective of the case. The act in realization of this gives the commissioner the powers to supervise the various methods used to collect evidence so that if the case is viable, the whole process can proceed. After an institution refuses to grant access to records to the requestor, the requestor can appeal with regard to this refusal. The commissioner is therefore required to view the case and gather all evidence in order to ascertain whether the requestor deserves the access to the records. The process also depends on the information provided by the requestor and the institution in making conclusions. Therefore, the commissioner must really ensure that the information provided by the requestor and the institution are true. The inquisitorial process serves this purpose the best because it allows the commissioner to supervise the gathering of information. It is upon the commissioner to ensure that the objective and the motive of the requestor in wanting to access records of an institution are both legal and valid.
The commissioner must also ensure that the release of such information will serve the objective of the requestor. This is because the fact that the requestor has the right of access to information does not automatically mean that the information will serve the needs of the requestor. For instance in the case of Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 S.C.R. 574, 2008 SCC 44, where a former employee of Blood Tribe Department of Health had requested for information and denied on the basis of privacy, the appeal was denied on the basis that such information would not be beneficial to the employee and therefore there was no ground for issuance of the documents. (Supreme Court of Canada). The inquisitorial process allows the commissioner to put these aspects into consideration. The federal access to information act employs a different process which is adversarial. The adversarial process is much more efficient for cases handled by the federal because some of these cases are criminal. However, such a process cannot work appropriately in a health care environment where most cases are not criminal. Therefore there is the observation that the inquisitorial process is much more favorable in a health care environment. This is because most of the cases involving privacy of information from a health care perspective are always milder as compared to federal cases. Employing the adversarial process might not be appropriate since it will not give the commissioner the opportunity to supervise the collection of evidence. Therefore, there is a great chance of the some of the evidences being inadmissible in court with regard to the methods used to collect them. The commissioner might therefore end up losing most cases and this might not be favorable especially to the requestor.
It is clear that the board did not employ the principal of fairness when handling the case. There is a general perception that the board is aware that the valuing of the property might have been flawed, and it is for this reason that the board seeks to dictate the hearing process. Tripling of the value of property within a year is bound to evoke complaints from any quarter. Regardless of the validity of the case, the board is still inclined to force issues. In any case, both the defendant and the accused are entitled to legal representation from a lawyer. This fact should not be ignored because in the instance where one party lacks representation, the whole process becomes unfair and the ruling will certainly be questionable. This can surely be observed by the way the board carries itself in the hearing. The board is rude and arrogant due to the realization that the case will definitely act in their favor. The board is already aware that there is no case but goes on with the hearing just to fulfill the protocol. The board enjoys the services of a good lawyer while the complainant is not even given the chance for defense let alone the services of a lawyer. Even superficial consideration of the case shows how the whole process is unfair. The board is legally required to justify such an action through the due process of the law. This process dictates that the board should address such a complaint with the respect it deserves and to provide the complainant with the opportunity to defend himself through the representation of a lawyer. In any case, it is upon the court to provide both the accused and the complainant with a chance to express their concerns.
However, the hearing is biased since the complainant has not been given the chance to even speak. Furthermore, the request by the complainant to be allowed to question the lawyer representing the council has also been denied. The lawyer of the city also failed to call any witnesses to support his claim but just decided to outline what he termed as the position of the city with regard to the case. This shows lack of enough grounds by the city to defend the actions it has taken of tripling the value. The board is also unfair because instead of listening to both sides, it has already assumed that that the case will definitely progress in favor of the city. The board arrogantly asserts that there is no case at all. There is also conflicting of interest because the board is made up of persons with apparent interest in the city council. Furthermore, the chairman of the board is also a lawyer and therefore seeks to make a good impression by representing the city well. Therefore, there is conflict of interest within the board. This can be seen clearly from the way the board carries itself and the arrogance with which it addresses the case.
A look at the case reveals that there is a valid complaint against the city council. The complaint amounts to fraud because the complainant has been compelled to triple the property taxes paid within one year. To the extent that this is action is uncalled for is a decision of the board. However, it is clear that there is a case. Institutional bias is also evident in the case. The board is appointed by the council and the same board is required to address cases relating to complaints against the city council. It is only obvious that the board will act in favor of the city council. It is on these grounds that the board can be prevented from hearing the case. In a case of Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, the ruling was in favor of the Newfoundland Telephone company and the appeal was granted on the basis that the Board was biased both in terms of constitution and interest. According to the ruling, “the duty of fairness is applicable to all administrative bodies.” (Athabasca University). In a related case of Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52, appeal was granted on the basis that the board did not practice the principle of fairness. (Athabasca University).
Lack of payment of rent is grounds enough for the landlord to require the tenant to vacate. However, law requires that due process that is legal be followed so that the whole process is validated. There are various grounds that may give the landlord the right to require the tenant to vacate. However, the law also appreciates that the tenant also has rights that must and should be respected during such an event. In fact, most laws favor the tenant because there is a general realization that in most instances it is the tenant who is prone to abuse by the landlord. In this instance the client has requested for a case to be built against a tenants who have failed to pay rent; one in Ontario and the other in Alberta. In Alberta the first move in successfully building a case would be to ensure that the notices are duly served to the correct persons so that the case can be valid and admissible in court. The notice which must be in writing is required that it be served to the tenant by the landlord or the landlord’s agent. The notice must also contain the date in which the tenant must have vacated the premises. The landlord is required to take these steps so that the tenant is duly aware of the situation and perhaps is given time to appeal or to look for another place to live. In the instance that the tenant refuses to vacate the premise, the landlord is required to proceed and take the matter to court. The landlord will request the court to provide notice which will be served to the tenant required the tenant to vacate. In the request the landlord will be required to indicate the date, manner and time when the notice was served. The request will also contain the reason for the tenant’s refusal to vacate to the extent that the landlord knows. This information is important to the court so that the court can decide whether the landlord has a case and whether the notice should be served.
In Ontario, the landlord will still be required to serve the notice of vacation to the tenant stating the reasons for requiring vacation. The landlord will indicate the time and date by which the vacation should have been done. Upon refusal to vacate, the landlord will be required to request the court to provide a notice of vacation that will be served to the tenant requiring the tenant to vacate. In the request, the landlord will provide the time, date and manner with which the notice of vacation was done. The landlord will also provide to the best of his knowledge the reason for refusal by the tenant. After the court has established a date for the hearing of the case, it will be upon the lawyer to the landlord to serve the notice to the tenant. The whole process is structured in a way that protects the tenant from abuse by the landlord and also gives the landlord the opportunity to have control of his property. When the due process is followed the court gives the tenant and the landlord the chance to outline their concerns and give the court the chance to make a fair ruling. Although there is a general realization that the process can be frustrating to the landlord, the essence is that the tenant in this case is identified as being in an unfavorable position and therefore it is for this reason that such a process is imperative. There is a general realization by the court to act in favor of persons deemed as being vulnerable. However, it is also upon the court to establish whether a crime has been committed and whether the case is valid. Administrative law defines the relationship that citizens have with each other and with authorities. The structuring of administrative law is such that it can protect individuals from abuse. The state also protects persons from abuse by institutions. In most instances laws are sensitive to disadvantaged persons and therefore seek to protect them from abuse. However, this does not mean that the court is blind to illegal acts committed by these persons.
The case against Keenan is valid and the evidence provided against Keenan is admissible in court. The evidence provided is:
Eight years ago, a passenger complained that Keenan used profane language while driving her to a hairdressing appointment. The evidence consists of an inspector’s report in Keenan’s file, stating that the inspector interviewed both the passenger and Keenan, and that Keenan denied the allegations. The file also contains a letter from the passenger setting out her complaint. The board staff intends to call the inspector as a witness, but not the complainant.
Five years ago, a taxi owned and driven by Keenan had a broken trunk door, causing discomfort and inconvenience to two passengers. The evidence consists of an inspector’s report found in Keenan’s file. According to the report, the inspector received a complaint from a passenger stating that because the trunk would not open, the passenger could not put his luggage in the trunk and had to put it in the back seat, crowding himself and the other passenger who refused to move to the front passenger seat. There is no written statement from the passenger, nor any evidence that anyone from the board inspected the vehicle, or notified Keenan of the complaint, or took any disciplinary action. The board staff does not intend to call the inspector or the complainant to testify.
Three years ago, Keenan allowed another driver to drive a taxi he owned when the brakes were worn and needed replacing. The evidence consists of a report prepared and signed by a mechanic employed by the board to carry out safety checks on taxis, stating that she inspected the vehicle and found that the brakes were worn to the point that it was unsafe to operate the vehicle.
One year ago, Keenan failed to pay his personal income taxes on time, and was assessed additional interest and a penalty. There is no explanation as to why the board has this information on its file or how it came into possession of it, and has never notified Keenan that it has the information. Board staff wants to use this information to show the board that Keenan will not pay any penalty levied against him, and consequently the only appropriate penalty is revocation of his license. (Athabasca University).
The evidence is admissible because there is no proof that it might have been obtained in an illegal way. In a related case of Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52, the evidence incriminating Ocean Port Hotel concerning previous acts of non-compliance were admissible in court. However, there are some considerations that the board needs to put into perspective in order to make the correct judgment. The board will need to establish whether there are valid witnesses to testify against Keenan. It will also be upon the board to determine whether there is any malice or uncalled for intention in incriminating Keenan. The board will also determine whether the claims concerning racist and sexual harassments can be proven and ascertain that all the evidences provided by the witnesses are valid. The cases against Keenan are serious and the board should therefore ensure that the evidence provides proof beyond reasonable doubts so that when the court makes the ruling, it does so in a fair manner. (Swaigen 38).
Just as explained earlier information privacy issues presents a greater challenge to the law. This is because there must be a valid reason for someone or an institution to make such a request for private information. Private information is always made accessible when it is legally deemed that such information could be crucial to towards the prevention of a risk or to prevent malpractices. When private information is made public, a company or an organization is always left vulnerable in terms of competition or due to negative publicity that may ensue. The following case requires that the commissioner and the researcher to be strategic:
A researcher makes a request to the Planning Department of the City of Muggledom for records relating to the development application, building permit application, and inspections of a particular multifamily housing project. The city department refuses to disclose these records and the researcher appeals this refusal to the Alberta information and privacy commissioner. The commissioner orders the city to disclose the records within 20 days. One month later, the researcher still does not have the records. She writes to the mayor requesting the city comply with the commissioner’s order. There is no answer. She writes again two weeks later and again receives no answer. The researcher writes to the commissioner, asking him to enforce his order. (Athabasca University)
The process of adjudication is very important in cases involving disputes between two parties. The adjudicator is required to clearly state the reasons for arriving at a particular ruling. First, it is important that both parties agree that the decision making process was fair, secondly, the ruling should not leave any loopholes that will require further hearings and thirdly, the ruling should portray the adjudicator as being impartial. An adjudicator or any other statutory decision making body should be able to clear and definite reasons for arriving at a particular decision. This is because it is important that the adjudicator or statutory decision making body arrives at a decision that will not be perceived as being partial or biased. When there is even the slightest element that the process is not fair then an appeal is usually inevitable. For instance, in a case of Heustis v. N.B. Elect. Power Commission., [1979] 2 S.C.R. 768
Date: 1979-05-22 (Supreme Court of Canada), the complainant’s request for appeal was allowed after it was realized that the adjudicators decision was biased. The adjudicator should release the reasons for the arrival of a particular decision before the hearing so that it can provide the defendant enough time to analyze the process and establish the authenticity. For instance in a case of Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 (Supreme Court of Canada), the city of Toronto was able to prevent an appeal because the adjudicator had provided the reasons for arriving to a particular decision and it was deemed that the process was fair. Therefore, during the hearing the case proceeded without having to move back. The adjudicator or statutory decision making body should be able to prove beyond reasonable doubts that the process was fair and impartial. The adjudicator should also not be deemed as having any interest whatsoever in the case.
The only other option that the commissioner and the researcher are left with is to appeal the case to the federal. The federal privacy information act has the provision that gives the commissioner and the researcher the right to appeal. With regard to the powers that the act bestows upon the commissioner, it is observable that the act favors an inquisitorial process. Since information privacy issues are always sensitive to the point that the method used to collect evidence can compromise the whole objective of the case. The commissioner will then be required to follow a process in order to ensure that that they have enough evidence and grounds to request for such information. The process will be somewhat adversarial and it is therefore upon the commissioner to gather all the information in consideration of the due process. Lack of such consideration may mean that the case can be invalidated to the fact that some of the evidence may have been obtained in illegal way. The act in realization of this gives the commissioner the powers to supervise the various methods used to collect evidence so that if the case is viable, the whole process can proceed. After an institution refuses to grant access to records to the researcher, the researcher can appeal with regard to this refusal. The commissioner is therefore required to view the case and gather all evidence in order to ascertain whether the researcher deserves the access to the records. (Swaigen, 176)
Works Cited
Athabasca University. Administrative Law. 2005. Web.
Supreme Court of Canada. Judgments of the Supreme Court of Canada. 2010. Web.
Swaigen, John. Administrative Law: Principles and Advocacy. Alberta: Emond Montgomery Publications, 2005.