Mind the Gap

This past week, the Government of British Columbia announced that Information and Privacy Commissioner David Loukidelis would be leaving that post to take on the role of Deputy Attorney General of the province. The transition will be effective February 1, 2010 though his resignation as Commissioner [PDF] was effective immediately.

David was appointed Commissioner in 1999 and he has overseen a dramatic transformation in privacy laws affecting British Columbians. The Personal Information Protection Act came into being during his tenure and his report on the effect of the USA Patriot Act on the privacy of Canadians is known around the world. He has had a great relationship with the privacy bar. I am sure I speak for most practitioners in saying he will be greatly missed in the privacy world.

This is sufficiently newsworthy for Slaw. But there’s a twist.

Apparently, no provision was made for an interim Commissioner and the Office of the Information and Privacy Commissioner has received advice that without an interim Commissioner, there is no jurisdiction for the office to do anything. Under the Freedom of Information and Protection of Privacy Act, the powers of the Commissioner are vested in the person of the Commissioner, who can delegate those powers. As they see it, if that office is vacant, there is nobody who can exercise those powers and they are of the view that the previously delegated powers are now defunct. The Office apparently can’t open files and can’t grant extensions for access requests. Mary Carlson wrote an urgent letter to Premier and then another to the Speaker of the Legislature [PDF], asking whether an interim commissioner had been appointed and, if not, to do so urgently.

It will be very interesting to see how this story unfolds.

(As an aside, Jennifer Stoddart’s seven year term as the Federal Privacy Commissioner comes to an end in December of this year. She is eligible to be reappointed, but I don’t expect we’ll hear anything definitive about her future plans until closer to the end of the year. Just in case, note to Stephen Harper: Mind the gap.)

This just in: the Government of BC has appointed an interim Commissioner.

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Comments

  1. Ontario dealt with the delegation issue in the Legislation Act, 2006, s. 81: “The delegation of a power or duty remains valid until it is revoked or amended, even if the author of the delegation is no longer in office.”