Industry Committee on May 22nd, 2024

[Jean-Denis Garon, Bloc, Mirabel, QC]

So that's what I was talking about.

Out of personal interest and for the committee's benefit, I'd like to have those statistics and a list of those judgments, if that wouldn't trouble you. I have to say I previously made that same request in private and didn't get the information I asked for. However, I know one mustn't disclose private conversations.

Earlier, Mr. Chhabra said that

in most cases, “the commissioner loses”.

So the Federal Court has apparently invalidated many of the Commissioner's findings, and we want to create a new tribunal based, among other things, on the allegation that the Federal Court doesn't have the necessary expertise.

Explain that to me. I'm not a lawyer, but, logically speaking, I think that's a dubious justification.

[Samir Chhabra]

It's a matter of effectiveness and expertise, Mr. Garon.

[Jean-Denis Garon, Bloc, Mirabel, QC]

I'm asking you the question precisely because that has happened many times.

You said we need a new institution, new people nominated, a new tribunal and a new building because the Federal Court doesn't have the necessary expertise.

Here's my reasoning. My own impression is that creating this new institution might have the effect of discrediting the Commissioner. We're told we need a new tribunal that has the necessary expertise. The stated justification for that is that the Commissioner's decisions are often invalidated by the Federal Court, which therefore has the necessary expertise to do so. However, if we tell you we prefer to go directly to the Federal Court, we're told it doesn't have the necessary expertise.

For someone for with an IQ over 80, that's completely illogical.

[Samir Chhabra]

Thank you for your question.

We have to acknowledge that there are two distinct elements here.

First, there are administrative monetary penalties. Then there are appeals. Those are two separate elements.

In my opinion, the necessary expertise on penalty-related decisions could be developed within the tribunal.

[Jean-Denis Garon, Bloc, Mirabel, QC]

However, your view is that—

[The Chair, Liberal, Joël Lightbound]

Just a moment, Mr. Garon.

Colleagues, as you can hear, the bells are ringing for the vote. Since they started around 6:42 p.m., the vote will be held near the end of the meeting. The meeting was supposed to conclude at 7:12 p.m., but I propose we adjourn around 7:05 p.m. so that all those who wish to go to the House to vote have time to do so. Having said that, I need the unanimous consent of committee members to continue the meeting to around 7:05 p.m.

Do I have the unanimous consent of the committee?

That's until about seven o'clock. Are we good?

[Some hon. members]

Agreed.

[The Chair, Liberal, Joël Lightbound]

Okay. Thank you.

[Jean-Denis Garon, Bloc, Mirabel, QC]

I didn't mean to interrupt you rudely, Mr. Chhabra, but I think it's important to use our time wisely, particularly since things are going smoothly today, which is quite rare.

I don't understand how that expertise could be developed from scratch at a new tribunal but not at the Office of the Commissioner.

[Samir Chhabra]

Once again, thank you.

We don't draw a distinction between the expertise of the Commissioner's office and that of the tribunals. In fact, the newly created tribunal would respect the Commissioner's expertise by virtue of the fact that it would have to attach considerable importance to the Commissioner's decisions.

In other words, the tribunal is providing more respect to the expertise of the commissioner by deferring to the facts, decisions and determinations made by the commissioner.

The second point about expertise is that the tribunal would see all of the cases related to privacy infractions and breaches. They would build that expertise, awareness and understanding over time, versus a scenario in which a court—any court and any judge—could be sought to sit on a given case. That is a very significant distinction.

It's about expertise in at least three ways in this case: the expertise to develop a facility to identify the right administrative monetary penalty; the expertise resident in the commissioner that becomes more respected because the tribunal must give deference to the commissioner's findings and facts; and the expertise in the tribunal itself, which becomes a much more expert body in hearing these appeals because it sees every single privacy—

[Jean-Denis Garon, Bloc, Mirabel, QC]

All right, I understand.

What you're telling me—

[Samir Chhabra]

I'd like to continue my answer, with your permission, Mr. Garon.

In the GDPR, which is the European system of general data protection regulations, Ireland has a system whereby its privacy regulator can't levy a fine directly. They must go to seek an adjudicated body to determine the level of the fine.

They have the highest level of GDPR fines in Europe, so the ability to work through these processes doesn't necessarily in any way suggest that you're going to have reduced fines, as may have been suggested at this committee earlier today, or that you're going to have slower decision-making. What we see internationally is just the opposite, in fact: The commissioner's work is actually strengthened by having an expert tribunal working on these issues exclusively.

[Jean-Denis Garon, Bloc, Mirabel, QC]

So you're essentially telling us that, if we create this new tribunal, it will be able to build expertise faster than the Federal Court because its judgments will concern a limited number of matters.

To my mind, that doesn't rule out the possibility that the same thing will happen at the Commissioner's office.

Let's move on to something else. You mentioned the duty of deference and said that the Commissioner's role wouldn't shrink, as it were, because the tribunal created under the bill would defer to the Commissioner's decisions and would only assess administrative monetary penalty amounts.

Is my understanding correct?

[Samir Chhabra]

The tribunal would have two purposes: to determine appropriate administrative monetary penalty amounts and to adjudicate appeals.

[Jean-Denis Garon, Bloc, Mirabel, QC]

Earlier someone said, or at least suggested, that the new tribunal would be empowered to establish fairer, more appropriate or more equitable penalties and would have to uphold the decisions made by the Commissioner. However, subclause 103(1), which concerns the disposition of appeals, provides as follows:

The Tribunal may dispose of an appeal by dismissing it or by allowing it and, in allowing the appeal, the Tribunal may substitute its own finding, order or decision for the one under appeal.

So that's not entirely true. Perhaps you can explain the legal term “consideration” to me, but that's not what was suggested earlier today. It was suggested that the Commissioner would be able to make recommendations and that the tribunal would have the necessary expertise to determine monetary penalty amounts. In reality, however, the new tribunal wouldn't really have greater expertise since, ultimately, it would simply be able to invalidate what the Commissioner had decided. It's written here in black and white, in subclause 103(1), and I repeat:

The Tribunal may dispose of an appeal by dismissing it or by allowing it and, in allowing the appeal, the Tribunal may substitute its own finding, order or decision for the one under appeal.

[Runa Angus]

I'd like to clarify two points. First, subclause 103(2) provides:

(2) The standard of review for an appeal is correctness for questions of law and palpable and overriding error for questions of fact or questions of mixed law and fact.

That's where the idea of consideration comes into play. The idea is to determine the applicable standard. When we say that the applicable standard of review is correctness for questions of law, it's a very strict standard, but the applicable standard for questions of fact and mixed questions of fact and law is palpable and overriding error. Consequently, in such cases, it must really be demonstrated that the Commissioner—

[Jean-Denis Garon, Bloc, Mirabel, QC]

I understand.

[Runa Angus]

We also discussed the expertise that would be established, but the tribunal will in fact already have expertise when it's established since the three to six members who would constitute it under the bill would already have to have expertise in the field. Consequently, expertise wouldn't necessarily have to be built.

[Jean-Denis Garon, Bloc, Mirabel, QC]

In recent days, we've seen examples in Quebec of judges whose expertise could be doubted.

Can you tell me what could prevent us, as legislators, from stating in the bill and amendments that this standard of review would apply to the Federal Court?

[Runa Angus]

On the one hand, from a very technical point of view, I think you would have to amend the Federal Courts Act because it's the legislation that prescribes how the Federal Court reviews decisions.

On the other hand, from an administrative law standpoint, there are certain principles of justice. Consequently, you would have to clarify, as is being done in Quebec, the roles and responsibilities of each clause to distinguish investigative and adjudicative functions. Then you would have to specify what standard the Federal Court would apply having regard to the structure of the organization.

[Jean-Denis Garon, Bloc, Mirabel, QC]

I'd be very curious to know more about the subject. I sense that we may not be voting today, which will give us a chance to learn more about it.

That being said, the bill provides for the enactment of three statutes. It's hard to pity a government that would have to amend a fourth for it all to work. Please pardon my lack of sensitivity.

[The Chair, Liberal, Joël Lightbound]

Thank you.

Go ahead, Mr. Perkins.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Thank you, Mr. Chair.

Would you consider the federal Privacy Commissioner to be an expert in privacy and privacy processes?

[Samir Chhabra]

I think that's a fair statement.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Would you feel the same way about provincial privacy commissioners?