Section 59 - Duty to Comply with Orders

Overview

Section 59 sets out the duty of the head of the public body or the service provider to comply with a Commissioner’s order within a specified time limit, unless the order has been stayed by an application for judicial review.

Section Reference

Section 59 of the Freedom of Information and Protection of Privacy Act

1. Not later than 30 days after being given a copy of an order by the commissioner, the head of the public body concerned or the service provider to whom the order is directed, as applicable, must comply with the order unless an application for judicial review of the order is brought before that period ends.
2. If an application for judicial review is brought before the end of the period referred to in subsection (1), the order of the commissioner is stayed from the date the application is brought until a court orders otherwise.

Policy

Under subsection 59(1) the head of the public body or the service provider must comply with an order of the Commissioner within 30 days. Any of the parties to the inquiry may file an application for judicial review during this 30 day period. Before complying with an order, the public body or the service provider should ensure that compliance will not prejudice the right of the public body, service provider or a third party to file for a judicial review.

It is an offence under section 74(1)(c) (Offences and penalties) to fail to comply with an order made by the Commissioner under section 58 (Commissioner’s orders).

Procedure

1. Ministries would consult with Legal Services Branch, Ministry of Attorney General, about whether or not government will seek a judicial review before complying with an order.
2. Where the Commissioner has ordered the release of additional information that affects a third party, the public body or the service provider should wait the full 30 days before releasing the information to give the third party the opportunity to exercise their right to file for judicial review. 

Interpretation

Judicial review

The Commissioner has exclusive jurisdiction to investigate a complaint against the head of a public body or the service provider. Courts do not have the power to issue orders under the Act.

An aggrieved party may petition the Supreme Court of British Columbia under the Judicial Review Procedure Act to review an action or failure to act of the Commissioner, or a decision of the Commissioner, for error of law on the face of the record, jurisdictional error or breach of natural justice (fairness). The Court could compel the Commissioner to do something or refrain from doing something or could send the entire matter back to the Commissioner for reconsideration. The Commissioner is the final arbiter of questions of fact but is always subject to the overriding jurisdiction of the Court to ensure that the Commissioner acts within his or her authority.

A judicial review of a Commissioner’s order is distinct from a review by an adjudicator under section 60 [(Adjudicator to investigate complaints and review decisions) of a Commissioner’s decision, act, or failure to act as the head of a public body].

Sectional Index of Commissioner's Orders

For orders organized by the Act's section numbers, Click here.

For a summary of Commissioner's orders and policy interpretation of key points, Click here.

Last updated: July 26, 2007