In the instant case, the aggrieved employee complained claiming that the documents were used in terminating her contract. Under several laws, the employee has indeed a right to demand for such documents. It is noteworthy that in every decision of the employer specifically dealing with the hiring and terminating of employees, there should be a justifiable reason to support it. This is the mandate of law, public policy and in the spirit of justice and fairness. But, such reason was not provided for to the employee.
On the part of the employee, she tried to seek for reasons and claimed that the may be contained in the documents in issue. Unfortunately, the employer refused to provide the documents on the ground of privilege. It is therefore clear that there exist a conflict of asserted rights. According to the PIPEDA, such conflict of rights should be settled by the Commissioner. In resolving the conflicting rights, it is therefore necessary for the Commissioner to review the said documents to determine two important facts, whether there exist a ground to claim the privilege and whether termination was based on the documents.
In resolving the conflict, it is therefore necessary that the said documents should be produced, regardless of any claim of privilege. Besides, the admissibility of the document in court as an evidence is not an important factor to be considered by the Commissioner, as expressly stated in the Act. The Act also confers right to the Commissioner to view documents necessary in the investigation. It is implied that the Commissioner is granted with discretion to determine the necessary documents. In the instant case, the Commissioner found the necessity of reviewing the documents in answering the two issues lodged before her.
But then, it is quite frustrating that the Supreme Court has disregarded the importance of the function of the Commissioner. Notably, in the land there are several privacy laws that gave investigatory power to the Privacy Commissioner. Some of these laws include the Public Service Employment Act, Employment Equity Act and Canadian Security Intelligence Service Act. With the decision of the Supreme Court, all of these laws need to be ratified or amended to comply with the jurisprudence, unless it is disputed by the parliament.
Not only does the power of the Commissioner that has been removed but the credibility and dignity of the Commissioner have been tainted by the decision. It is noteworthy that the purpose of creating the office of the Commissioner has been persuaded by the need of an administrative body, independent from the government, to help in the administration of justice. The person and office has been created to be impartial and fair in all its decision in order that its purpose is fulfilled.
Upholding justice is also one of the primary goals of the office. Hence, it is expected that the office and the person occupying should be given due respect and confidence in its capacity to decide. However, by the decision of the court, the citizens who may have complains may be hindered on the ground that there cause of action may not be addressed. Likewise, any decision rendered by it may be doubted by the losing party because of the Court’s statement that the Commissioner may tend to be partial in her decisions.
Hence, the decision and the justification of the court in the Blood Tribe case has effectively imperilled and disabled the Office. Additionally, the court disregarded the importance of the investigatory power of the Commissioner as it did not consider the benefit that can be derived by both parties and the public interest at stake. Strikingly, the Commissioner is not a court that may impose punishes but endeavours to settle the conflict in such a way that the burdens of both parties will be eased. Thus, the decision could have been supportive of the public interest.