Evidence of meeting #19 for Access to Information, Privacy and Ethics in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was personal.
A recording is available from Parliament.
4:05 p.m.
Privacy Commissioner, Office of the Privacy Commissioner of Canada
My recollection of that case that went to the Federal Court was that it was discontinued. It didn't really decide the issue. I think that's something for this committee to decide.
4:05 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Okay. Maybe when you come back you'll be able to tell us. I'm sure this topic is going to be raised in the future by individuals. I would appreciate it, if you do come back again--and I hope you do--if you would have this at the top of your list, because it seems to be one of the issues that's been dealt with.
One of the other issues is the issue of solicitor and client privilege. I'm not familiar with this case you've spoken of, this Blood Tribe case. Are you saying the commission should be allowed to go beyond solicitor and client privilege? Is that what you're saying?
4:05 p.m.
Privacy Commissioner, Office of the Privacy Commissioner of Canada
Yes, Mr. Chairman, that's what we're saying, and we do in the Privacy Act.
4:05 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
You see, I always thought that whether documents are solicitor and client.... Are you saying you should have the right to that information, whether there's solicitor and client privilege or not? Is that what you're saying?
4:05 p.m.
Privacy Commissioner, Office of the Privacy Commissioner of Canada
Yes. We're saying that in the course of our investigations we have to be able to look at all the documents that are relevant to our investigation.
4:05 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
You're going to get the law societies and the Canadian Bar Association all excited.
4:05 p.m.
Privacy Commissioner, Office of the Privacy Commissioner of Canada
I think they already are, Mr. Chairman. We'll worry about that later.
4:05 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
I know, and I'm sure someone will come and challenge you on that. I must say, there are a lot of lawyers in this room and I can't believe they aren't excited as well. It's quite a major—
4:05 p.m.
Privacy Commissioner, Office of the Privacy Commissioner of Canada
Yes, it's a fundamental issue.
4:05 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
I don't know of any situation--and if there are, there are very few of them--where you can simply go beyond solicitor-client privilege. It's quite a major statement.
4:05 p.m.
Privacy Commissioner, Office of the Privacy Commissioner of Canada
It is, but the first level of court agreed with us, so it's not patently unreasonable.
4:05 p.m.
Conservative
4:05 p.m.
Privacy Commissioner, Office of the Privacy Commissioner of Canada
Well, we may take it to a third level.
4:05 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Okay, there you go, Mr. Chairman.
With respect to your consultations on the 12 issues, you're going to give us those, are you? You mentioned 12 issues that you had. Is that somewhere in the documentation we have?
4:10 p.m.
Privacy Commissioner, Office of the Privacy Commissioner of Canada
You have a résumé of the answers that came back, the background information. It's a document that was given to this committee, some 36 pages, and you have a résumé of the positions.
4:10 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Okay. One of the issues I'm interested in is whether PIPEDA is doing enough to facilitate small business.
4:10 p.m.
Privacy Commissioner, Office of the Privacy Commissioner of Canada
That's an excellent question, Mr. Chairman. Most of our complaints are against the large organizations that are the federally regulated organizations. In some provinces, of course, we don't see the small business, because it's the provincial laws that apply. Certainly when PIPEDA first came we had extensive meetings--particularly the assistant privacy commissioner responsible for PIPEDA had extensive meetings with representatives of small business. We consulted them as to what they would need. We are currently working with our enhanced budget that was granted to us, and we're working on an interactive tool for businesses for implementation of PIPEDA, with small businesses in mind that don't have a lot of money to invest in privacy compliance.
So the short answer is you're probably right that we're not doing enough, but we're trying to do more.
4:10 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
No, I didn't say that. I was simply asking whether you were or not. I guess now that you've said that you're probably not, can the legislation be changed to assist small business more?
4:10 p.m.
Privacy Commissioner, Office of the Privacy Commissioner of Canada
I wasn't thinking of that, Mr. Chairman. I was thinking that the burden of compliance generally tends to fall quite harshly on small businesses. In that sense, it's my own personal opinion that I think we may not be doing enough.
I mentioned this interactive video that would be a learning tool. It is designed for small businesses that don't have the money to go out and hire privacy consultants and so on, the way the big businesses do.
4:10 p.m.
Liberal
The Chair Liberal Tom Wappel
Thank you.
Before we go on to our next round, simply to be crystal clear on your position with respect to solicitor-client privilege, in your opening remarks you said, and I'm quoting you,
It effectively allows organizations to shield information from our investigators with no independent verification that the documents in question do in fact contain information subject to solicitor-client privilege.
There's a major difference between saying we should be able to look at the documents to determine whether or not they are subject to solicitor and client privilege, and saying we should have access to all documents, even those that are subject to solicitor and client privilege. Do you understand the difference of what I'm pointing out? If so, which is your position?
4:10 p.m.
Privacy Commissioner, Office of the Privacy Commissioner of Canada
I think it would involve both. Our position is that we should be able to look at the documents to see if they would be subject to a solicitor-client privilege, and if not, to examine them to see if they have personal information relevant to the investigation.
4:10 p.m.
Liberal
The Chair Liberal Tom Wappel
Clearly. But if so, what if your investigation finds that they are subject to solicitor and client privilege?
4:10 p.m.
Privacy Commissioner, Office of the Privacy Commissioner of Canada
Then I think that would be it.
4:10 p.m.
Assistant Commissioner (PIPEDA), Office of the Privacy Commissioner of Canada
To put this in context, to take the fact situation in the Blood Tribe case, our complaint came from an employee of the Blood Tribe. Blood Tribe is a federal work under the definition, so we investigated. She wanted access to her personal information held by her employer, and the employer said you can have this, and you can have this, and you can have that, but you can't have.... It was a few documents that they claimed were privileged.
In order for the commissioner to do her job and say “You correctly invoked this exemption to disclosure because you don't have to disclose to your employee a privileged document”, we have to be able to go in there and look at that document and say “Yes, it is privileged, and you're right, you don't have to disclose it to the complainant”. That's the sort of situation we're looking at. It doesn't come up in every case. In fact, it rarely comes up. It's very rare that an organization actually claims the exemption for solicitor-client privilege when faced with an access request.