Constitutional challenge of privacy law suspended, inquiry against religious group to proceed

The Supreme Court of British Columbia has ordered to stay a civil action challenging the constitutionality of a privacy law pending resolution of inquiry proceedings commenced by former members against a religious group.

In Watch Tower Bible and Tract Society of Canada v. British Columbia (Attorney General), 2021 BCSC 1829, two former members of Jehovah’s Witnesses sought production of personal information from their congregations. The congregations refused, claiming the records were confidential and compelling production infringed their constitutional rights. The former members initiated the inquiry proceedings before the B.C. information and privacy officer to consider the congregations’ denial of production requests and assertion of confidentiality.

The plaintiffs filed a civil action alleging that the Personal Information Protection Act, SBC 2003, c 63, was constitutionally invalid for violating their constitutional rights of religious freedom, freedom of expression and freedom of association and for failing to provide any mechanism to protect confidential religious communications and records. They sought a declaration that the Personal Information Protection Act was of no force and effect and therefore, inapplicable to them.

To ascertain which of the two proceedings should proceed, the parties filed distinct applications before the B.C. Supreme Court. In the first application, the plaintiffs brought an interlocutory injunction to stay the inquiry proceedings. In the second application, the defendant sought for an order suspending the civil action pending the outcome of the inquiry proceedings.

In its decision, the B.C. Supreme Court held that the defendant had satisfied its burden for a stay of the civil action pending the outcome of the inquiry proceedings. The court also found the interlocutory injunction an inappropriate relief.

The court said the information and privacy commissioner had the expertise and authority to decide questions of law and was in the best position to hear and decide constitutional questions related to the Personal Information Protection Act. Aside from having substantial overlap between the parties, both proceedings revolved around the same issues, the court added.

The court stressed that the civil action, if expedited, would cause a significant delay to the inquiry proceedings. To permit the civil action to proceed, the court noted, would result in a multiplicity of suits, and could run the risk of inconsistent outcomes, unnecessary expense for the parties and a waste of limited judicial resources.

While it did not need to deal with the interlocutory injunction resulting from staying the civil action, the court still provided a legal basis to justify the inappropriateness of the injunction. The court found that the plaintiffs had not proved that the balance of convenience favoured the granting of the injunction.

The plaintiffs failed to demonstrate that the civil action was one of those rare, clear cases where this court would be justified in suspending the effect of validly enacted legislation or staying the statutorily mandated exercise of powers by the information and privacy commissioner, the court said.