Evidence of meeting #124 for Industry, Science and Technology in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was tribunal.
A recording is available from Parliament.
Director General, Strategy and Innovation Policy Sector, Department of Industry
Again, I think that's a fair statement, but I would rather not engage on it in the generics.
When we think about the different powers that each of those commissioners has and the different systems in which they function.... For example, they don't all have the ability to impose administrative monetary penalties. Alberta and B.C. are examples of that.
Conservative
Rick Perkins Conservative South Shore—St. Margarets, NS
That's fair enough, but I just wanted to establish that—
Director General, Strategy and Innovation Policy Sector, Department of Industry
Therefore, when we're talking about degrees of expertise, I think it's important that we be really clear about where the expertise lies—
Liberal
Ryan Turnbull Liberal Whitby, ON
I have a point of order.
I don't want to interrupt, but can we just let the witness finish his answer?
Conservative
Rick Perkins Conservative South Shore—St. Margarets, NS
I have only five minutes until we adjourn, and he's not answering the question I was asking.
Liberal
Ryan Turnbull Liberal Whitby, ON
Rick, I'm really respectful. If you wouldn't mind letting him finish answering without cutting him off, I would appreciate it.
Conservative
Rick Perkins Conservative South Shore—St. Margarets, NS
Could you wrap that up so I can get on with it?
Liberal
The Chair Liberal Joël Lightbound
Thank you, Mr. Turnbull.
A point of order is not a debate between MPs, but, yes.... Please, Mr. Perkins, allow Mr. Chhabra to conclude his thoughts.
Director General, Strategy and Innovation Policy Sector, Department of Industry
Thank you, Mr. Chair.
I was simply trying to make the point that it's important that we think about domains of expertise very specifically. We are talking about a specific question. Make sure the voices we're talking about in that question are actually avowed experts in the area they're talking about.
If we're going to be talking about things like having a tribunal, for example, or having an administrative monetary penalty regime—
Conservative
Rick Perkins Conservative South Shore—St. Margarets, NS
Let me pose my questions, if I could. Thank you.
I understand all of that, and there are different systems, but privacy commissioners all talk to each other. They're not some sort of independent, isolated person. In fact, they talk to each other around the world.
I'm sure you've read this, but in the current Privacy Commissioner's submission on Bill C-11 in 2021, he wrote:
The central issue in this design is as follows. In order to enhance consumer confidence, we believe that the decision-making system for adjudicating complaints should be as fast and efficient as possible. In order for individuals to have confidence, they would expect there to be real and timely consequences when the law is violated. Of course, the system must also be fair to businesses. Over a 40-year period, the OPC's performance in this regard has been excellent, and we welcome making our procedures more transparent and consulting on ways to enhance them. We are also prepared, should Parliament grant us the power to impose monetary penalties, to have to take into account any relevant factors, beyond those set out in—
He mentioned a particular section in the previous bill.
He continued:
In our opinion, the design of the decision-making system proposed in the CPPA goes in the wrong direction. By adding an administrative appeals Tribunal and reserving the power to impose monetary penalties at that level, the CPPA encourages organizations to use the appeal process rather than seek common ground with the OPC when it is about to render an unfavorable decision. While the drafters of the legislation wanted to have informal resolution of cases, they removed an important persuasive tool from the OPC. Moreover, this design is outside the norm when compared with other jurisdictions.
We've had a lengthy discussion on that already.
He continued:
Given these considerations, our primary and strong recommendation is to remove the provisions relating to Personal Information and Data Protection Tribunal....
That's from the previous bill, Bill C-11, which has been put forward again.
When the Privacy Commissioner appeared before this committee on October 19, 2023, he said:
Third, there remains the proposed addition of a new tribunal, which would become a fourth layer of review in the complaints process. As indicated in our submission to the committee, this would make the process longer and more expensive than the common models used internationally and in the provinces.
This is why we've recommended two options to resolve this problem. The first would be to have decisions of the proposed tribunal reviewed directly by the Federal Court of Appeal, and the second would be to provide my office with the authority to issue fines and to have our decisions reviewable by the Federal Court without the need to create a new tribunal....
He's an expert, but that was also shared by the former privacy commissioner when he appeared before this committee. He also pointed out that every provincial privacy commissioner opposes the tribunal. In fact, specifically, the Information and Privacy Commissioner of Alberta stated before this committee, at meeting number 104, that:
We are concerned about whether the inclusion of the tribunal as an appeal body to the Privacy Commissioner's orders would impact our ability [as provincial privacy commissioners] to conduct joint investigations.
There's a lot of opposition to this. That's what we've heard. I'm at a loss to see.... Almost anybody who's an expert in this has said this will lengthen the process and make it more difficult—everybody except the government.
Director General, Strategy and Innovation Policy Sector, Department of Industry
I think we've been really clear in explaining our rationale for why we think it would be more efficient in this model. I think we've also been really clear to note that in some cases the provincial commissioners don't have the power to issue administrative monetary penalties.
The previous commissioner was reacting a number of years ago to a different bill and a different approach. The current Privacy Commissioner has outlined an interest in seeing compliance agreements be more flexible in their approach. The government's amendment does in fact propose to make that a feature.
As my colleague Ms. Angus pointed out earlier, the ability to change the level of appeal to the Federal Court of Appeal rather than the Federal Court, which is also something that Commissioner Dufresne has pointed out, is not something that can be done in this proceeding, because Bill C-27 doesn't actually open the Federal Courts Act.
The other approaches that Commissioner Dufresne has highlighted have in fact been taken on board. Our conversations with the Privacy Commissioner suggest that there is an openness and an understanding of why this could be important. In fact, in his most recent testimony to this table, the OPC himself suggested that:
Since the bill provides the authority to issue orders and significant fines, more procedural fairness may be warranted.
To address that concern, the government could say, yes, more procedural fairness is needed. That's the model used in Quebec and other parts of the world.
Even in his own testimony before this committee, he did in fact raise that issue and acknowledge that there could be good reasons for doing so.
I would also point out that in your commentary earlier, the way it was presented made it seem like the commissioner could not act quickly. In fact, the exact opposite is true under CPPA. The commissioner can act quickly to issue orders, both compliance orders and stop orders.
This notion that somehow this tribunal function would slow down the ability for the commissioner to act in situations that are requiring speed is not the case, and this notion that somehow investigations or joint investigations would be impeded only because of an administrative monetary penalty, which, by the way, would always be set distinctly anyway.... The ability to collaborate on an investigation is not at all hampered by having a tribunal in place. The only thing the tribunal is responsible for is determining the ultimate amount of any given administrative monetary penalty.
Conservative
Rick Perkins Conservative South Shore—St. Margarets, NS
I've noticed the clock, and we're going to vote, but I just want to say, because I'll continue on this at the next meeting, that that wasn't my presentation. That's the testimony of the Privacy Commissioner. I just want to correct you there, because you made it seem like it was mine. I was quoting the Privacy Commissioner.
Liberal
The Chair Liberal Joël Lightbound
On this note, I'm sure we'll have the chance to continue this interesting discussion.
Thanks to our witnesses for being with us today, and we'll see you next week.
This meeting is adjourned. Thank you, everyone.