Evidence of meeting #22 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 pipeda.
A recording is available from Parliament.
5:05 p.m.
Executive Director, Canadian Internet Policy and Public Interest Clinic
Sir, I think that is the very reason it's important to allow groups like CIPPIC and PIAC to do the kind of research we do and find important non-compliance and complain about it, because privacy breaches are so hidden by their very nature.
5:05 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Yes.
A number of questions have been asked of you with respect to the order-making powers. Are you suggesting the commissioner have the order-making powers or are you suggesting there be a separate tribunal?
5:05 p.m.
Counsel, Public Interest Advocacy Centre
We're suggesting the provincial model in B.C., Alberta, and Quebec be followed, whereby the commissioner himself or herself has that power rather than a separate tribunal, which we think would be awfully cumbersome.
5:05 p.m.
Conservative
5:05 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
No. For the commissioner to have that power, because she said she doesn't want it.
5:05 p.m.
Counsel, Public Interest Advocacy Centre
And we're not quite sure of the reasons.
5:05 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
I keep looking at over $16 million. That's what I keep looking at. I'm wondering what the next bill is going to be if you get into an order-making power.
5:05 p.m.
Counsel, Public Interest Advocacy Centre
I don't see the difference between writing a finding and writing an order. It may be a bit longer, it may be slightly more costly, but they were doing the work anyway, so let's make it effective.
5:05 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
Now, you get into the issue--and it's been mentioned briefly--where you have an individual and there's a hearing, I would assume. I don't know how that would take place. Maybe you have some ideas as to how that would work. There would be an investigation, presumably, and then a hearing. I guess the commissioner would make the investigation and make an order. Is that what you say is order-making? If she found there was a violation, there would obviously have to be a process set up whereby one could defend oneself.
5:05 p.m.
Counsel, Public Interest Advocacy Centre
That would be an improvement on the present situation, whereby the investigation has occasionally been a little bit one-sided for either the complainant or the company. We would welcome a slightly more formalized procedure, and as to whether that would add a lot to the cost or not, I don't think so. I think the B.C. and Alberta models have shown you can give people a chance to do written submissions, at least, and I'm not sure if they do oral as well. We don't want to judicialize it overly, but--
5:05 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
You get into the issue of one who doesn't like the decision of a commissioner. I'm just following along on your philosophy, because a number of people have come to us and said the ombudsman approach is better than the order approach. It's almost like being a judge and prosecutor at the same time.
5:05 p.m.
Executive Director, Canadian Internet Policy and Public Interest Clinic
Can I answer that?
That's absolutely right. There's great merit to the ombudsman approach, and we're not saying to get rid of it. We're saying to continue the ombudsman approach and resolve as many of these disputes as you can through mediation and that sort of thing. But you should also have the order-making power for those kinds of issues for which it is appropriate and for those that need the order-making power.
5:05 p.m.
Conservative
David Tilson Conservative Dufferin—Caledon, ON
If she had that power, it has been mentioned that presumably there would be the capability to appeal that to another place. We've talked about the cost of that—and I think you're actually a little low in your cost, but that's all right.
Have you contemplated whether there should be issues where the commissioner...? I'm thinking, for example, of the court system, of small claims court claims that are non-appealable unless the quantum is over a certain amount. Is it possible to categorize minor types of offences so that decisions on those could not be appealable one way or the other?
5:10 p.m.
Executive Director, Canadian Internet Policy and Public Interest Clinic
I haven't thought about that.
5:10 p.m.
Counsel, Public Interest Advocacy Centre
We haven't thought about it in detail, but take, for example, the very garden variety company that didn't respond to my request for what information they held on me or didn't respond within thirty or sixty days or whatever it is under the act. Those are the sorts of things that would be more difficult to appeal, so they might be appropriate. But I would like to look at it more before we make a proper answer.
5:10 p.m.
Executive Director, Canadian Internet Policy and Public Interest Clinic
Can I respond to the broader issue? The Alberta and B.C. models make the commissioners' findings final. They're not actually appealable to court.
5:10 p.m.
Executive Director, Canadian Internet Policy and Public Interest Clinic
There's always the possibility for judicial review. That always exists. It may be that what you're talking about is applications for judicial review. But those are the models that we've been proposing.
We've also proposed a simplified procedure. The Federal Court does have, in its rules, rules for simplified procedures. I haven't studied them to see how effective they are, but absolutely, a lot of these cases are susceptible to written evidence and simplified procedures. We should structure this in a way that is most efficient, with the lowest cost for everyone.
5:10 p.m.
Conservative
Gerald Keddy Conservative South Shore—St. Margaret's, NS
Thank you, Mr. Chair.
I want to go back to where I left off in the last line of questions, and that was the B.C. and Alberta examples. You've had the two provincial jurisdictions come in after a federal act, with the ability of hindsight to look at and see how the act has been applied. I do have some concerns, as Mr. Tilson has. We don't want to create a bureaucracy that becomes this omnipotent bureaucracy all by itself, that actually over-complicates the act and forces people to the last recourse of litigation for every single issue. That would be something I would fear.
In B.C. and Alberta, because they've had the advantage of hindsight and the ability to look at the act as it was written, has the incidence of litigation gone up, has it gone down, or is it the same? Do we know?
5:10 p.m.
Counsel, Public Interest Advocacy Centre
I don't think we know at the moment.
5:10 p.m.
Executive Director, Canadian Internet Policy and Public Interest Clinic
You'd have to ask them. I'm just trying to think of any court cases that I'm aware of in those two provinces. There may be some, but I'm not—
5:10 p.m.
Conservative
Gerald Keddy Conservative South Shore—St. Margaret's, NS
If you're advocating change at the federal level, that's a piece of information that we really should have to see how it's applied on the ground. That's one of the cases, at least for me, where I'd want to know if it has worked on the ground in B.C. and in Alberta.
