FOIPP Act Policy and Procedures Manual

Overview Section Reference Summary Interpretation

This section describes how the Commissioner may either resign from office prior to completing his or her term, or be removed or suspended from office. A new Commissioner may be appointed under section 37 (Appointment of commissioner) or acting Commissioner under section 39 (Acting commissioner).

SECTION REFERENCE

Section 38 of the Freedom of Information and Protection of Privacy Act

38 (1) The commissioner may resign at any time by notifying the Speaker of the Legislative Assembly or, if there is no speaker or the speaker is absent from British Columbia, by notifying the clerk of the Legislative Assembly.

(2) The Lieutenant Governor in Council must remove the commissioner from office or suspend the commissioner for cause or incapacity on the recommendation of 2/3 of the members present in the Legislative Assembly.

(3) If the Legislative Assembly is not sitting, the Lieutenant Governor in Council may suspend the commissioner for cause or incapacity.

SUMMARY

This section describes how the Commissioner may either resign from office prior to completing his or her term, or be removed or suspended from office. A new Commissioner may be appointed under section 37 (Appointment of commissioner) or acting Commissioner under section 39 (Acting commissioner).

INTERPRETATION

The Commissioner may only be removed or suspended from office for cause or incapacity. This means that the Commissioner may not be removed by arbitrary or capricious action, but only for some reason affecting and concerning the ability and fitness of the Commissioner to perform the duties of the office.

"cause" means a reason or motive; a ground that may be held to justify an action [OED 9th].

"incapacity" means a physical or mental condition or disorder suffered by a member of a professional body of such nature and extent that it is desirable in the interests of the public or the member that the member no longer be permitted to practice [DCL].

If the Legislative Assembly is sitting, 2/3 of the members present must initiate and support the removal of the Commissioner. If the Legislative Assembly is not sitting, then the Lieutenant Governor in Council may suspend the Commissioner, but may not remove the Commissioner.