Industry Committee on May 27th, 2024

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

Did I move CPC-9? Who moved CPC-9?

[The Chair, Liberal, Joël Lightbound]

Mr. Williams did.

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

Since Mr. Williams moved it, in terms of the testimony from officials at the last meeting when we were discussing this, I'd like to propose a subamendment to it, if I could. I think it reflects maybe not all of the concerns, but at least one of the concerns of officials.

I would like to propose a subamendment with regard to CPC-9.

In one of the English versions of the amendment, I would propose it read, “by deleting lines 6 to 15 on page 51”. That's what it would read. Just as an explanation, that's instead of what it currently says, which is “by deleting lines 1 to 15 on page 51”.

I believe that officials raised a valid concern regarding CPC-9 in the last meeting, related to the deletion of the private right to action. This was an error on our part during the drafting process when trying to delete the cross-references to the tribunal and removing the preconditions necessary to conduct a private right to action.

Conservatives support the private right to action. This proposed subamendment will ensure that private rights to action can continue under the CPPA, while also strengthening the process by removing the mandatory preconditions.

I know I just sort of dropped this on you. In circulating it, perhaps officials can take a look.

Essentially what we're doing is saying that the leading lines are 6 to 15. Lines 1 to 5 are the ones that deal with the issue—

[The Chair, Liberal, Joël Lightbound]

Mr. Perkins, hold on just one second. We have a point of order.

[Ryan Turnbull, Liberal, Whitby, ON]

I'm really sorry to interrupt you.

I really need a copy of this before we continue.

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

He's sending it to the clerk.

[Ryan Turnbull, Liberal, Whitby, ON]

I would really like to be able to read it, because I couldn't follow the deletions of the lines you've just mentioned.

In relation to a fairly long piece and an important piece of this bill, I really would like to have a copy in both official languages. Maybe we could just take a moment to suspend and get that, so that everybody has a copy and we can follow along.

Thank you.

[The Chair, Liberal, Joël Lightbound]

That makes sense to me. We'll wait for the subamendment to be distributed.

The meeting is suspended.

[The Chair, Liberal, Joël Lightbound]

Colleagues, I believe the subamendment by Mr. Perkins has been circulated in both official languages, so members and officials have had the chance to take a look at it. Thank you for that.

Mr. Perkins, I'll yield the floor back to you.

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

It has been correctly pointed out—thank you to the clerks—that I missed one word, which is in line 5. The word “if”, which starts off those following sentences, should also be deleted.

[The Chair, Liberal, Joël Lightbound]

That is duly noted.

Mr. Perkins, you still have the floor, if you have something—

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

The idea here was to put back into the amendment.... I understand that the government doesn't support the overall amendment, and I get that, but the idea here was that we had never intended to get rid of the concept of the private right of action. Perhaps on that particular aspect, I could get some comments from the officials.

[Mark Schaan, Senior Assistant Deputy Minister, Strategy and Innovation Policy Sector, Department of Industry]

I'd like to thank the member for his question.

As it relates to the current subamendment, what is being reintroduced is a portion of the “Private Right of Action” section—the first five lines, which is essentially proposed subsection 107(1). In both the French and the English, you'll note there are prerequisites for the purposes of the private right of action.

Proposed subsection 107(1) ends in English with “if” and in French with “selon le cas”, and there are a couple of conditions related to when a private right of action would apply.

What has essentially been designed as the scheme for private rights of action is not an unfettered private right of action. Individuals aren't simply allowed to go forward whenever they feel like they've been aggrieved on a personal information issue.

The court of first instance is the Privacy Commissioner, hence the current prerequisite reads:

(a) the Commissioner has made a finding under paragraph 93(1)‍(a) that the organization has contravened this Act and

(i) the finding is not appealed—

I understand there is some consideration as to whether there should be appeals or simply judicial reviews.

—and the time limit for making an appeal [or a judicial review] under subsection 101(2) has expired, or

The tribunal is not actually introduced until proposed subparagraph (ii):

(ii) the Tribunal has dismissed an appeal of the finding under subsection 103(1); or

(b) the Tribunal has made a finding....

What has been reintroduced is only a very partial scheme of the private right of action, which actually introduces an unfettered private right of action. There is no first-instance finding of the Privacy Commissioner, but, in fact, anybody who believes an organization has contravened the act “has a cause of action against the organization for damages for loss” and can simply pursue that.

We have had instances and concerns related to private rights of action in previous pieces of legislation where there is essentially unfettered access. The fear, of course, is that this creates what some people have suggested is a class-action factory. Suddenly, anybody is empowered to create legal actions when they believe their privacy has been contravened, as opposed to allowing the first-instance finding, which is the case of the Office of the Privacy Commissioner, to weigh in and, in cases in which there is a finding, to say, “Now you can actually pursue civil damages under the act.”

I understand the thought process here, which is that stripping out the PRA was never the intent, but what has been reintroduced is not the PRA as it was understood in the first scheme of the act; it is actually an unfettered PRA.

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

Thank you. That's clear.

We have another amendment, CPC-70, that's way down on the list. Basically, what you're saying is that this was intentional. It wasn't an unintentional miss on our part. This was an intentional thing.

If an individual does not want to wait, say, for two years to go through the Privacy Commissioner, the effect of this is, as I understand it, that if they can pay the cost they can go directly to the court themselves to get a finding without going to the Privacy Commissioner. That would be the effect of this. Is that correct?

[Mark Schaan]

Right now there are no bars at all, so there's no gating at all for individuals who wish to pursue direct court action against—

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

That's with this amendment—

[Mark Schaan]

That's with this amendment.

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

—whereas in the current CPPA, there is.

[Mark Schaan]

In the first instance, in the current understanding of the PRA, as it was introduced in the statute—or as in this draft—there is a bar, which is that the commissioner has heard your complaint and ruled that it is actually a violation. Therefore, you're then allowed to proceed on the civil basis for penalties.

That was done for a number of reasons. The first is that the Privacy Commissioner is the first-instance arbiter of privacy considerations, and the second is the potential for the courts to be clogged by a massive number of actions that may or may not be founded.

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

Perhaps, but we don't know that, and we don't know that it would be a massive number that would circumvent the Privacy Commissioner. However, it does give the individual the option of going straight to the court without having to pursue that after waiting for a lengthy Privacy Commissioner—

[Mark Schaan]

Essentially what it does is create a dual track. You have one track where individuals essentially don't have to wait for a trusted entity to actually have made findings related to privacy violations, and instead those who can—

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

That's correct.

[Mark Schaan]

—and are privileged enough to be able to mount a case would be able to do so. We have seen instances in other legislation where there are private rights of action without necessary conditions, and that does potentially incentivize behaviour and encourage people to see what they can get through and then to share in any benefits that come from that.

I don't believe that our concerns about the possibility for volume are necessarily unfounded.

I think Mr. Chhabra wants to add to my point.

[Samir Chhabra, Director General, Strategy and Innovation Policy Sector, Department of Industry]

Thanks very much.

I wanted to point out that I think it would also result in the creation of, as Mr. Schaan pointed out, two tracks, but also the possibility of scenarios in which the Privacy Commissioner's views or interpretation of the act would be different from what a court might find in a similar circumstance. You're now creating a situation where there are multiple arbiters of the act and its interpretation and application, which creates a huge amount of uncertainty for Canadians, for businesses, etc. It's a very different formulation from what's been proposed to date.

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

Thank you.