Before a privacy regulator can decide whether someone should receive disputed records, must the organization holding them allow the regulator to inspect them?
That question sits at the centre of Vabuolas v. Information and Privacy Commissioner for British Columbia. The Supreme Court of Canada heard the appeal on October 9 and reserved judgment.
The dispute involves personal-information access requests by two former Jehovah’s Witnesses and records held by their former congregations. It brings privacy rights, religious freedom and administrative decision-making into the same proceeding.
Production to the regulator is the critical distinction
According to the Supreme Court’s case summary, the former members sought their personal information under British Columbia’s Personal Information Protection Act. After mediation failed, an adjudicator conducted an inquiry and ordered the congregations to produce responsive records for her review. The British Columbia courts upheld the decision.
The order was for regulatory inspection. It was not an immediate direction to disclose every disputed record to the requesters.
That distinction separates two legal questions: what the regulator may inspect to decide the dispute, and what the individual may ultimately receive.
Conflating them obscures the practical issue before the Court.
Confidentiality can become the subject of the inquiry
An organization may argue that the nature of its records limits a regulator’s authority to inspect them.
The regulator, however, may need to examine those records to determine how the statute applies.
That creates a difficult sequencing problem. How can the legal status of a document be established when the claimed protection is also advanced as a reason to prevent inspection?
The eventual judgment may clarify how that tension should be resolved in this context. It should not be assumed to determine every confidentiality dispute involving a regulator.
Administrative law matters alongside the substantive rights
The adjudicator concluded that religious freedom was infringed but that the infringement was justified. The appeal therefore concerns more than identifying competing interests. It also raises questions about how administrative decisions engaging Charter rights should be assessed.
For counsel, the distinction between challenging statutory authority, disputing a constitutional conclusion and contesting the exercise of discretion can be consequential.
The proper framework affects how the argument is presented and what the reviewing court examines.
Implications extend beyond religious organizations
The immediate dispute concerns congregational records. The broader interest lies in regulatory access to information that an institution considers confidential.
Religious and nonprofit organizations should understand their record holdings, access-request procedures and grounds for withholding information. Counsel should also distinguish among confidentiality, privilege and constitutional protection rather than use those concepts interchangeably.
Privacy regulators will be watching for guidance on the authority and safeguards surrounding inspection.
Until judgment is released, the Court has not established a new rule resolving the balance.
Who may inspect a record can be as consequential as who may ultimately receive it.