Evidence of meeting #125 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.
Senior Assistant Deputy Minister, Strategy and Innovation Policy Sector, Department of Industry
If I understand the question, you want to know if proposed paragraph 107(1)(a) and subparagraph 107(1)(a)(i) require that the commissioner to have concluded his investigation, otherwise the person has no opportunity to file a complaint in a civil court.
Bloc
Jean-Denis Garon Bloc Mirabel, QC
That's correct.
If we remove proposed paragraph 107(1)(a) and subparagraph 107(1)(a)(i), what will prevent someone from waiting for the commissioner's report before launching a civil suit?
Senior Assistant Deputy Minister, Strategy and Innovation Policy Sector, Department of Industry
Can you clarify your question?
Bloc
Jean-Denis Garon Bloc Mirabel, QC
In other words, even if the proposed legislation does not require the person whose rights have been infringed to wait for the commissioner's report and recommendation before launching a civil suit, that person could still decide to wait for the commissioner's report and use it in civil court. Is that correct?
Senior Assistant Deputy Minister, Strategy and Innovation Policy Sector, Department of Industry
If a person wants to go to civil court for a violation of their rights under this act, the provisions of this act require that the person wait, since it says that civil recourse is only possible after—
Liberal
The Chair Liberal Joël Lightbound
Mr. Garon, I apologize for interrupting such a fascinating conversation, but I need the unanimous consent of the committee to continue, because members are called to vote in the House.
Do I have the permission of the committee to continue until about 12:55 p.m.? Those who want to vote in person will then have time to get to the House.
Conservative
Liberal
Liberal
Conservative
Conservative
Rick Perkins Conservative South Shore—St. Margarets, NS
It's a 30-minute bell, so going until five to will give us 15 minutes.
Bloc
Jean-Denis Garon Bloc Mirabel, QC
Mr. Schaan, I'm wondering about what you said, that removing proposed paragraph 107(1)(a) and subparagraph 107(1)(a)(i) would increase costs for someone who, for example in Quebec, would decide to file a civil suit rather than defer to the commissioner.
Even if proposed paragraph 107(1)(a) and subparagraph 107(1)(a)(i) were removed, the commissioner will still conduct his investigation and still submit a report. There is no connection between the two. The question we're asking is about how the commissioner's report will be used in a civil tribunal other than federal courts, for example.
Suppose my rights have been violated, and I decide to sue someone in the Court of Quebec. If the proposed paragraph 107(1)(a) and subparagraph 107(1)(a)(i) didn't exist, would I still have the option, on a voluntary basis, of waiting until the commissioner has conducted his investigation and filed his report before filing my lawsuit? Would that be an option for me?
Senior Assistant Deputy Minister, Strategy and Innovation Policy Sector, Department of Industry
Yes, in that case, the person would have the option of waiting for the commissioner's report, for example, to strengthen their case, but nothing would require them to wait.
Bloc
Jean-Denis Garon Bloc Mirabel, QC
That's correct.
So, even if paragraph 107(1)(a) and subparagraph 107(1)(a)(i) are deleted from the proposed act, the worst thing that can happen is that the person waits and ultimately uses the commissioner's information. However, if someone decided, for their own reasons, not to wait for the commissioner's report and to launch a civil action by paying the costs incurred, they could do so.
Senior Assistant Deputy Minister, Strategy and Innovation Policy Sector, Department of Industry
Yes.
Bloc
Jean-Denis Garon Bloc Mirabel, QC
So the costs and delays wouldn't necessarily be increased for the complainant. What we're doing is taking away a choice.
Senior Assistant Deputy Minister, Strategy and Innovation Policy Sector, Department of Industry
Yes. As you said, the person would have the option of waiting, relying on the resources of the commissioner and using his report to bring a civil action.
The person would also have the option of not waiting for the commissioner's report, but that option would cost them more. It's also possible that this option poses a challenge to the interpretation of the act. Once the case is before the court, it will be the court's role to interpret the law and determine whether or not the person has been violated, in the absence of a report from the commissioner stating that there has been a breach of privacy.
Bloc
Jean-Denis Garon Bloc Mirabel, QC
In all cases, if the person is dissatisfied with the commissioner's report or, above all, with the penalty suggested by the commissioner, the fact remains that the person can then ask a court, such as a provincial court, to review the penalty.
So, if I understand correctly, in all cases, even if we keep paragraph 107(1)(a) and subparagraph 107(1)(a)(i) as proposed, a game of ping‑pong could be played with the interpretation. I'm talking about the penalty here.
Senior Assistant Deputy Minister, Strategy and Innovation Policy Sector, Department of Industry
It's the interpretation of the penalty, yes. This is such an important thing. That may be one of the open‑ended questions. That's also why we want to create this tribunal: It's an effort to separate the concept of sanction from the concept of violation of the act.
There are two options when it comes to considering the penalty. Under one of those options, the commissioner has found that an individual has a well‑founded complaint of a violation of the act, wants a penalty to be imposed, but is dissatisfied with the penalty proposed by the commissioner. It's somewhat the same thing in the case of the tribunal. The penalty has to be reconsidered. It's not a question of reconsidering the interpretation that was made that there was a violation of the act. That role rests solely with the commissioner.
