Industry Committee on May 27th, 2024

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

I understand.

I asked you the question because, when Mr. Turnbull was asking you questions earlier today, it seemed clear in your mind that, if we deleted paragraph 107(1)(a) and subparagraph 107(1)(a)(i) that are proposed, the only possible outcome was an increase in costs for someone who wanted to take the law into their own hands. We agree that's not true.

[Mark Schaan]

There are the—

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

If the costs go up, it's the individual's choice.

[Mark Schaan]

Yes. The examples are clear. There may be one of the options where the costs are going up or are higher.

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

Thank you very much, Mr. Schaan.

[Mark Schaan]

No problem.

[The Chair, Liberal, Joël Lightbound]

Thank you very much.

Next on my list I have Mr. Williams.

[Ryan Williams, Conservative, Bay of Quinte, ON]

Thank you, Mr. Chair.

I appreciate the discussion today. I think it is a good discussion, but I'm essentially bringing the discussion back to the reason for these amendments, which is that we are again looking at whether we need a tribunal or whether we look at some other routes.

As has been indicated, there are other options besides the tribunal. There's the initial complaint requirement. One we haven't talked about is an escalation to the court requirement. These are all going to come into the same section when we get to it, but coming back to the changes we're trying to make in the initial amendment we're dealing with is whether the tribunal is needed at all.

I think we've heard arguments on both sides. Certainly, we can look at the option of a tribunal, and we've gone through what happens with the courts and how we go through that process, or we can give more power to the OPC, as they've asked for, and then look at this section and others to see what other amendments we can make to ensure the public has options.

I've heard from you, Mr. Schaan, arguments almost on both sides when you're arguing this, because the last time we were here, you were saying the problem with it and why we needed the tribunal was that the OPC was going to be overtaxed, overburdened, and the tribunal was a way to alleviate that. I think the private right to action actually also alleviates that in some ways, because there are going to be other ways for the public to go and find a dispute mechanism without having to go through this tribunal.

I think the tribunal has been brought in as an idea. We would be one of the first—and the only G7 nation—to bring in a tribunal. The rest of the nations are working just with more power for the privacy commissioners, and it seems that's still the argument that we're at.

Mr. Turnbull brought up a lot of arguments to say that this is going to clog up the system or we're going to have different decisions made by different courts, but if we had an escalation to the court requirement, or if, again, we looked at proposed paragraph 107(1)(a) and subpara (a)(i) of this section, certainly that would in some ways alleviate those concerns and make it a little simpler. To me, it still does not make sense as to why we couldn't make those changes that have been asked for by the Privacy Commissioner without creating the tribunal, which is just another bureaucratic layer.

Have we looked...? I guess the question is.... We haven't talked about it, but could it be escalation to the courts or could something be written stating that if the tribunal had taken too long with a certain decision, it automatically would go to the courts? Is that another remedy that would allow us to look at more power to the Privacy Commissioner without having a tribunal?

[Mark Schaan]

I think it's important to make sure we're segregating the arguments in their purest form to make sure we're understanding where there are considerations or concerns that are being raised.

There is a rationale about courts versus tribunal in terms of resources and capacity, because in the instance of the creation of the tribunal you are essentially creating a purpose-built body for the purposes of administrative monetary penalties for privacy violations. That's not about the OPC's resourcing, because it's actually about the tribunal as a stand-alone body able to understand and issue AMPs, as opposed to the courts. That's one argument that is—

[Ryan Williams, Conservative, Bay of Quinte, ON]

What would the alternative to that be? The OPC could administer those. Is that correct?

[Mark Schaan]

There is a consideration around whether the OPC issues those AMPs. That introduces a different set of considerations.

One is that you're converting an ombuds that was created as an agent of Parliament and has a very particular function. An ombuds is not a determinate body. It's an advice-giving body. That's why it was created as an ombuds. It's because of the nature of an agent of Parliament. You are entrusting an agent of Parliament and moving them from an ombuds function to an enforcement function. You are in effect grouping an investigatory function, a findings function and a penalties function. By all considerations of natural justice in administrative law, there should be appropriate mechanisms in place to segregate those functions. We do that in a number of particular types of instances. There are ways in which we can contemplate how to separate those functions.

Essentially, you have two considerations there. One is that you've grouped them all, which we have concerns about because that's not, to our mind, a consideration of how you actually achieve natural justice or administer it in due process. Two, you've given it to an agent of Parliament that is presiding over private sector actors. Most agents of Parliament preside over government functions.

[Ryan Williams, Conservative, Bay of Quinte, ON]

I'll interrupt you there.

The alternative is a tribunal, which would then, in some ways, still be an agent of Parliament, because some of those positions, as listed, would be appointed by either the minister or Parliament.

[Mark Schaan]

Except that—without “nerding out” and getting too down in the weeds—there is a distinction to be made between agents of Parliament and GIC appointees.

GIC appointees act under the minister and under the authorities set out by statute. This means there's a line of accountability in the Westminster system, from the duly elected government down to the appointee, as opposed to agents of Parliament appointed by some summary of Parliament but not actually accountable under the statutory obligations set out in a particular piece of law.

There is a material difference between those two things in terms of how one understands natural justice to have occurred.

[Ryan Williams, Conservative, Bay of Quinte, ON]

We've had these discussions before.

Looking at other G7 nations or western jurisdictions, are they not putting the AMPs into the privacy commissioner function? Are they not doing what you're saying is not...?

[Mark Schaan]

There are a number of models out there. The particularities of our situation—in which you're converting an ombuds function into an enforcement function and then putting them with the AMPs—is quite distinct.

I'll let Mr. Chhabra weigh in.

[Samir Chhabra]

Thanks very much.

I think, as we discussed last week at this committee, it's important to recognize that when we do analysis on these kinds of issues, we do it in full view of the totality of the systems we're looking at. It's not just about picking out any one specific element and saying, “That's the same over there. Why can't we do it the same way?” As Mr. Schaan just mentioned, we're talking about a particular constitutional construction here in Canada, where we have an officer of Parliament in the first instance. Nowhere else do we find it structured that way. Right away, we have a distinction that needs to be made about what could fit well within that construct.

Second, as we discussed last week, there are a number of jurisdictions internationally that separate the function of the investigation work, the adjudication work and the decision-making around penalties. I think I mentioned last week that Australia separates it. The commissioner in Australia may seek civil penalties from a court body. Ireland also separates that function. In New Zealand, the privacy regulator cannot issue administrative monetary penalties, but cost and damages may be awarded by a human rights review tribunal. In Quebec, for example, the CAI is essentially a tribunal function built into the privacy regulator. There are many instances.

In fact, as we discussed last week, it's generally understood that, in order for folks to have a fair and impartial hearing, and to have the process stand up under scrutiny and not be subject to a very significant risk of challenge on the basis of a reasonable apprehension of bias, you need to separate those functions. Vesting a single individual or office with the responsibilities of ombuds, investigatory function and adjudication function would significantly open it up to challenge.

[The Chair, Liberal, Joël Lightbound]

Mr. Williams, I apologize, but we'll have to leave it at that in order for members to head back to the House for the votes.

I want to thank our witnesses.

Mr. Schaan, Mr. Chhabra and Ms. Angus, thank you for taking part in this exercise again.

We'll see you on Wednesday for another fascinating meeting.

Thank you, everyone.

The meeting is adjourned.