In an earlier blog post this time last year, we reviewed a decision and order of the Ontario Privacy Commissioner in which she ordered that the Ontario Liquor Control Board (LCBO) cease collecting the personal information of wine club members to process club purchase orders and that it destroy any such personal information that it had collected.
The LCBO applied to the Ontario Divisional Court for a review of the order and the Divisional Court has now ruled. In the decision the Court challenge was based on whether the LCBO was given a full opportunity to make submissions to the Commissioner or whether there was a breach of the duty of fairness. The LCBO was given an opportunity to make representations to the Commissioner’s investigative staff regarding whether there was a breach of the Freedom of Information and Protection of Privacy Act (FIPPA) but argued that it was not provided an opportunity to speak to whether an Order should be made against it. After reviewing case law on the content of the duty of fairness, the Court found that there was a breach of procedural fairness and the LCBO had not been given adequate notice of the possible remedy that could be imposed and had not been given a reasonable opportunity to address the decision maker herself. The decision was quashed on those grounds and remitted back to the Commissioner. While the Court did not find it necessary to rule on the merits of the finding that FIPPA had been violated, in its concluding remarks, it did seem to cast some doubt on that finding.