Executive Summary: Key Legal and Evidentiary Issues

• Determination of whether the appellant retained and disseminated personal information contrary to FIPPA after leaving public employment.

• Admissibility of expert and affidavit evidence in petition proceedings despite non-compliance with Rule 11-6 requirements.

• Reliance on circumstantial evidence and credibility assessments in proving possession of records.

• Application of adverse inference for failing to call a material witness closely connected to the appellant.

• Interpretation of statutory powers under FIPPA for recovery and destruction of unlawfully held personal information.

• Judicial discretion in weighing technical forensics against sworn testimony in contested privacy breaches.

Facts and outcome of the case

Background and context
Guy Gondor, formerly the Information Technology Manager for the District of Saanich, was found to have copied records containing personal information from the District’s shared drive onto his work laptop and a USB stick shortly before leaving his employment in February 2022. These records were later found on DVDs sent anonymously to the Office of the Information and Privacy Commissioner (OIPC) and in an email sent by Gondor’s adult child (D.G.) to the District. The records included sensitive engineering documents, bylaw infraction information, and responses to Freedom of Information (FOI) requests related to D.G.’s disputes with neighbors.

The District demanded that Gondor return and destroy any copies of the records, but he denied having them or disseminating them. After he failed to comply, the Attorney General of British Columbia, on behalf of the District, filed a petition under sections 73.1 and 73.2 of the Freedom of Information and Protection of Privacy Act (FIPPA) seeking orders for return and destruction of the records, disclosure of recipients, and related relief.

Proceedings in the Supreme Court
The chambers judge concluded that the five statutory criteria for a FIPPA recovery order were met, with the only disputed issue being whether Gondor was in possession of the records after leaving his job. The court found inconsistencies in his explanations, noted the implausibility of his denial given his IT role, and determined that he had provided the records to D.G. and was responsible for their appearance at the OIPC. The court admitted a KPMG forensic report and portions of affidavits from District IT officials, despite procedural non-compliance, exercising discretion to admit them. An adverse inference was drawn from Gondor’s failure to have D.G. swear an affidavit explaining the source of the records. The court ordered Gondor to return and destroy the records and awarded costs to the Attorney General.

The appeal to the Court of Appeal
On appeal, Gondor argued that the chambers judge failed to address possession, improperly admitted non-compliant expert evidence, erred in drawing an adverse inference, and made palpable and overriding errors in assessing his credibility. The Court of Appeal rejected each ground. It found that the judge had clearly addressed possession through a credibility assessment, lawfully exercised discretion to admit the KPMG report and affidavits, properly applied the law on adverse inferences without requiring exclusive control over the witness, and committed no reviewable error in credibility findings.

Outcome
The appeal was dismissed, confirming the orders requiring return and destruction of the records. The Attorney General of British Columbia was the winning party. Costs previously awarded at the chambers level remained in place, but no damages were ordered. The case reinforces the enforcement powers under FIPPA, the acceptance of circumstantial and forensic evidence in privacy breaches, and the courts’ willingness to draw adverse inferences in appropriate circumstances.