There certainly is incentivized behaviour, potentially, for people to find a venue that they believe will be more sensitive to their cause, so you may very well have people avoiding the OPC and opting instead to go to the courts until such time as the law can be clarified. This would lead to more challenges until either the Federal Court of Appeal or the Supreme Court can make a determination in these particular instances, and then I think it's worth remembering that this goes back to living in the schema that's set out in CPPA.
In the government's view and version of the statute that's before members right now, the Privacy Commissioner receives complaints, makes investigations, makes determinations, uses the full tool kit available to the Privacy Commissioner and orders findings of violation and recommendations of administrative monetary penalties. Then, in the government version, if he or she goes the AMPs route, the tribunal rules on AMPs, and what is then only reviewable is not findings of fact. Again, the Privacy Commissioner's view would be determined as per the Privacy Commissioner's original findings. There are other amendments that are coming later, potentially, about making it judicially reviewable only if there's a determination.
Then you'd have one track potentially on the private right of action side that has this possibility for regular review and renewal on the part of the courts, because you get different courts reviewing it, and then, on the Privacy Commissioner side, findings of fact on their violation that will not be reviewed, because it's determined that he or she is actually the sole determinant of findings of fact and violation as it relates to the interpretation of the act.
You'd have two very jarring systems, because one has a ton of variability and one has privileged an actor to say, “You're the first-instance finding and we have belief in your capacity, and we'll only continue to appeal insofar as you potentially have made an error in law or potentially that we want to review the determination of the tribunal.”
That's the last thing I'll say. There are other powers associated with that investigatory function that are quite important—the compulsion of information, for instance. They're a resource body for the purposes of investigating people's complaints about privacy. The court has the evidence that is provided to it, so the plaintiff and the defendant, in this particular case, will be the sole determinants of the information that the court can make a determination on, as opposed to in the case of the OPC, where they fill the record with what they need to be able to come to a determination on the fundamental violation or not.