Industry Committee on May 27th, 2024

[Mark Schaan]

I think that's an accurate concern about this approach.

The second consideration is the prospect of monetary penalties at the outset of this. You might see particular behaviours in the marketplace start to form. “Have you been a victim of privacy violation? Call 1-800-privacy-violation.” Then you split the reward on a contingency basis. Suddenly there's a bunch of people brought into a class action or other types of action within the court system on a premise that there might be gold at the end of the rainbow.

In the OPC process, we've actually empowered people to find violations on a finding of fact. There is a learned body entrusted with protecting their privacy and making determinations.

[Ryan Turnbull, Liberal, Whitby, ON]

I don't understand why the Conservatives proposed this. I get that the intentions were good...in some world. I don't know. This just seems like it has a lot of adverse unintended consequences. I'm not a fan of doing things on the fly. I believe the government and the team have put a lot of time, energy and effort into contemplating a robust legal framework that I think fits together and tries to streamline the process to be as effective and efficient as possible and to probably not have significant delays in terms of justice being served.

I note that Mr. Williams used the phrase “justice delayed is justice denied” over and over again. It seems like this particular subamendment would delay justice considerably, thus, I think, violating the intention of some of what the Conservatives have said multiple times. I'm not sure where this is coming from, but it seems like a half-baked idea that is not going to serve the interests of anybody at all and will actually create mass confusion.

I certainly am not supportive of this subamendment based on the testimony, Chair. I know there are other people on the list, so I'll yield the floor for the moment. I'll put myself back on the list, because we can't have this subamendment go forward. I won't let it.

[The Chair, Liberal, Joël Lightbound]

Thank you, Mr. Turnbull.

Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

Thank you.

To the officials, is it true that whether we have a tribunal or no tribunal or this process that's presented or maybe an alternate, that any case could eventually end up or will end up in the courts if the parties want that to be the case?

[Mark Schaan]

I think I need to unpack your question slightly.

As it relates to the matter before us regarding this private right of action, what this contemplates is whether individuals will have the capacity to bring their own efforts before the courts as it relates to privacy violations. The scheme that was initially provided for in the bill imagines that individuals do have that capacity, but only after the commissioner has made a determination of a violation of privacy, unless that violation is under appeal, the tribunal has dismissed an appeal or the tribunal has already come to a determination. If you've closed your case, as it were, before the track that includes the OPC and the tribunal, then the private right of action is no longer there, but if it's an open-ended one, then you can pursue it.

As it relates to the subamendment right now, we are imagining that individuals will be before the courts at the same time as potentially someone might be appealing an OPC ruling.

As it relates to the—

[Brian Masse, NDP, Windsor West, ON]

No, I understand that, but the question was about how even under the tribunal process we could still end up at the courts. I understand you're saying there would be steps that would take place before that, but the courts are still the ultimate backstop for any model we have in front of us. That's what I'm looking to.... I understand there could be different stages, but there's nothing stopping anyone from suing at the end of the day if they don't like the model we have in legislation with the tribunal or, alternatively, with another model that might be presented.

[Mark Schaan]

I'll say three things maybe, and I'll turn to Mr. Chhabra and Ms. Angus for two of them.

One, to your last point, is that it isn't actually possible to necessarily find yourself before the courts in the current model of the bill, because in order to find yourself before the courts, you need a finding of violation by the Privacy Commissioner. That's a ticket to entry, so it does reduce the number of court instances in which this is potentially the case.

In the case of the current model, though, as you note, what happens when people don't like the determination that happens.... Maybe I'll turn to Mr. Chhabra and Ms. Angus to identify again what role we've given the courts as it relates to what they can and can't opine on. I think it's important, because at the core of this is who has interpretation and investigatory responsibilities under the act. In the scheme that's currently provided for under Bill C-27, the role of the courts in their actual consideration of OPC findings is actually relatively limited in certain cases.

I'll turn to Ms. Angus to walk through that.

[Runa Angus, Senior Director, Strategy and Innovation Policy Sector, Department of Industry]

Thank you very much.

I'll just talk a bit about.... Here, on this amendment, we're talking about a PRA, a private right of action, which is about damages. It's somebody who has lost something because of a privacy violation, and they go to court to make themselves whole again. This is not about correcting the privacy violation. It's about making themselves whole again and getting damages for the loss that they suffered.

In that case, as Mr. Schaan said, the track is that the OPC makes a finding of a violation, and then that plaintiff takes that finding of a violation to the court and says, “Look, there's been a violation. The OPC says so after an investigation, after an inquiry. I've lost X, Y, Z because of this privacy violation”—whether that's reputation or anything else—“and I would like to be made whole again through damages.” That is that track.

Then there is another track, which is the OPC making a finding that could possibly be appealed to the tribunal. That is the actual finding. The tribunal acts as an oversight mechanism for that finding. It's not a dual track, as it would be for a PRA, like Mr. Schaan discussed. It's really an oversight mechanism, not a dual track. That cannot be appealed to a court, as we discussed last time. That is actually a final decision on a particular factual finding. In that finding, the tribunal gives deference to the commissioner on findings of fact and findings of mixed law and fact. That cannot be appealed to a court. That can only be judicially reviewed, which is entirely different. It's not a substantive consideration of the merits. It's just a question of whether the tribunal acted reasonably or not.

Is the court a backstop? It's always a backstop, but how you get there—whether it's on a PRA or on a finding of a violation—is very different. It's a different standard of review, and the court plays a different role in each of those situations.

[Brian Masse, NDP, Windsor West, ON]

Thank you. That's been helpful.

With regard to the amendment, can we not create a model whereby we amend the amendment so that the Privacy Commissioner completes their investigation first and then you can go to the courts? I'm not entirely enamoured by this tribunal.

I do appreciate the arguments of complicating things for the Privacy Commissioner with a two-stream process that's ongoing, but can we not create a piece of legislation that would have the Privacy Commissioner continue to be the first step before any court process?

[Mark Schaan]

Mr. Chair, as it currently reads in the bill itself, that would be achieved through the continuation of the inclusion of what was in the draft text. Right now, the Conservative subamendment stops at line 5, where there previously was an “if”. That “if” is gone. Essentially, what that “if” does is what you propose.

The “if” of proposed paragraph 107(1)(a) is:

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 and the time limit for making an appeal under subsection 101(2) has expired

It goes on to talk about a tribunal determination, but at minimum, paragraph 107(1)(a) and subparagraph 107(1)(a)(i) get at the notion that this has to have been reviewed by the Privacy Commissioner first to allow for a private right of action to proceed.

[Brian Masse, NDP, Windsor West, ON]

Thank you for that.

Would including subparagraph 107(1)(a)(ii) be more specific in the sense of direction for that process? That's the model I like, but I would also like to know whether subparagraph 107(1)(a)(ii), which you didn't quite get to, would also be better and clearer for the Privacy Commission process.

[Mark Schaan]

Proposed subparagraph 107(1)(a)(ii) gets at the suggestion that a tribunal exists. It says “that the organization has contravened this Act and”:

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

The gates for getting a private right of action are in proposed subparagraph 107(1)(a)(i). The Privacy Commissioner has understood and found a violation. That finding is not under appeal, so you're not still in the process. You're not taking a shortcut and trying to get around the issue that the Privacy Commissioner is still considering this.

Then, if a tribunal exists, there's subparagraph 107(1)(a)(ii), that the tribunal hasn't already ruled on this and dismissed this, or paragraph 107(1)(b), that “the Tribunal has made a finding”, has actually come to a conclusion on this matter. Proposed subparagraph 107(1)(a)(ii) and paragraph 107(1)(b) contemplate the existence of a tribunal and its role in the private right of action.

[Brian Masse, NDP, Windsor West, ON]

That's what I don't want. I really appreciate the thoroughness of your response.

I would, at the appropriate time, Chair, seek consensus. Perhaps we could finish the first part and then (a) and then part 1 of the bill. That's what I would propose finding some consensus on.

Thank you, Mr. Chair.

[The Chair, Liberal, Joël Lightbound]

Mr. Masse, I'm not sure I follow. Are you moving it?

[Brian Masse, NDP, Windsor West, ON]

Yes, I'll move a motion. I didn't want to inadvertently cut off any speakers, because I'm not in the room, but if no one else wanted to, I would be prepared to move an amendment to the Conservative amendment that includes—

[The Chair, Liberal, Joël Lightbound]

Mr. Masse, to be procedurally a little more elegant, I think I would rather deal with the subamendment. Then maybe you can move.... Wait just one second.

[Brian Masse, NDP, Windsor West, ON]

Thanks.

[The Chair, Liberal, Joël Lightbound]

That's what I had in mind, Mr. Masse. We'll deal with the subamendment of Mr. Perkins first, and then you will be able to move your subamendment in due course. If you want some time just to explain it so members know what's coming, I can defer to you.

[Brian Masse, NDP, Windsor West, ON]

I'll be really quick. I just want to make sure I am doing this right. Once we passed Mr. Perkins' subamendment, I would have to then reinstate (a) and (i). What I'm seeking is that the tribunal would be the first course of action. That would precede any court cases. The Privacy Commissioner would be the first stop in the decision-making process, and then from there the court system would be engaged if someone sought that. I think that would be a better process than having the two-track process that's been identified.

Thank you.

[The Chair, Liberal, Joël Lightbound]

Thank you, Mr. Masse.

That was just as a point of information, to enable members to know what might be coming. In the meantime, Mr. Masse, if you want to move this subamendment once we're done dealing with the one currently before the committee, please prepare it in writing so that it can distributed to members.

Next on my list is Mr. Garon.

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

Thank you very much, Mr. Chair.

I want to make sure I understood what you presented to us.

Let's take an example that would happen in Quebec, since that's the case I'm interested in. Let's say a person has been a victim of a violation of the act and decides to go to a civil court to sue for damages, reputational damage, or whatever. If the commissioner hasn't first conducted his investigation and made a decision, the delays will be extended and the costs will be increased for the person who decides to institute proceedings. Is that basically it?

[Mark Schaan]

[Inaudible—Editor]

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

For educational purposes, let's say there is no tribunal. I repeat that this is for educational purposes, because I wouldn't want Mr. Turnbull to get angry. Based on what you're saying, if we keep the commissioner's analysis at first instance, that means that the commissioner conducts his investigation and submits a report and a recommendation. Afterwards, if the person is dissatisfied and wants to file a lawsuit, the person can turn to a civil court, such as the Court of Quebec.

Based on what you're telling us, if we were to remove paragraph 107(1)(a), including subparagraphs 107(1)(a)(i) and (ii), as well as paragraph 107(1)(b), which are proposed, a person could institute proceedings without having received the commissioner's report, but, as a result, they would have to bear the costs of the investigation, the discovery of the facts and so on. That in itself could be prejudicial to the person who has already been harmed. Did I understand correctly?

[Mark Schaan]

Yes, you understood correctly.

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

Okay. It's rare for us to agree quickly like that. That's fine. We're off to a strong start.

I have a question: if we were to remove paragraph 107(1)(a), subparagraphs 107(1)(a)(i) and (ii) and the following, what would prevent someone from waiting for the commissioner's report and then using that document in court?

Do you understand what I'm getting at? I feel that, even if we accepted Mr. Masse's proposal, we would be taking away an option from someone. There's nothing to prevent a person from waiting for the commissioner's report and using it in court. However, if a person is in a hurry or if the harm is significant, they can decide to take the steps at their own expense and deal with the delays. It's still a choice.

Could someone still wait for the commissioner's report before filing a civil suit?