Industry Committee on May 29th, 2024

[The Chair, Liberal, Joël Lightbound]

I call the meeting to order.

Good afternoon, everyone. Welcome to meeting number 126 of the House of Commons Standing Committee on Industry and Technology.

Today's meeting is taking place in hybrid format. Pursuant to the Standing Orders and the order of reference of Monday, April 24, 2023, the committee is resuming consideration of Bill C‑27, Digital Charter Implementation Act, 2022. Today, we are continuing clause-by-clause consideration of the bill.

Before we begin, I would like to remind all members and other meeting participants in the room that it's important to keep their earpiece away from their microphone when it's on, and to familiarize themselves with the guidelines that are written on the cards on the table. The health and safety of all participants is at stake, especially the interpreters. I therefore ask you to act accordingly, and thank you in advance for your co-operation.

Today, Wednesday, we welcome back Mr. Samir Chhabra, director general, as well as Ms. Runa Angus, senior director, both from the Department of Industry's Strategy and Innovation Policy Sector.

Mr. Chhabra and Ms. Angus, thank you for participating once again in the committee's clause-by-clause study of Bill C‑27.

Before turning the floor over to Mr. Williams, who had the floor while we were debating amendment CPC‑9 and Mr. Perkins' subamendment, I'm going to give the floor to Mr. Garon, since he asked me for a few minutes to talk about the motion he gave notice of on Monday.

Mr. Garon, you have the floor.

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

Thank you, Mr. Chair.

I think most of us have been made aware of the GLENTEL affair: two cellular giants have, through a joint venture, obtained a monopoly in Loblaws grocery stores. In this context, I think it would be important for the committee to address the issue of competition and the business models that can undermine it.

I know the committee has done a lot of work on the grocery store issue, and I think we need to do the same with the cell phone market. You have all received the motion, of which I gave notice on Monday, May 27. I don't intend to debate it today, but I'd like to table it and read it. Here's the text:

With regard to the early termination of the supply contract between Loblaw’s “The Mobile Shop” wireless handset and service outlets and Quebecor’s subsidiary Freedom Mobile, and in light of Glentel’s business model; That, pursuant to Standing Order 108(2), the Committee invite the following witnesses to testify on issues related to allegations of anticompetitive practices:

Mirko Bibic, CEO of Bell; Darren Entwistle, CEO of Telus; Tony Staffieri, CEO of Rogers Communications Inc.; Galen Weston, CEO of Loblaw; Pierre Karl Péladeau, CEO of Quebecor Media Inc.; and Matthew Boswel, Commissioner of Competition, Competition Bureau Canada;

And that the committee allocate two meetings to hear these witnesses.

[The Chair, Liberal, Joël Lightbound]

Thank you very much, Mr. Garon. I should point out that the motion had not been tabled, in fact. You had only given notice of it.

Mr. Turnbull, you now have the floor.

[Ryan Turnbull, Liberal, Whitby, ON]

Thanks, Chair.

I'm sorry I can't be with you all today in person, and I have to join remotely.

I just wanted to say I'm generally supportive of Mr. Garon's motion. The topic is an important one. Perhaps we can study it. We've certainly said all along that we would continue to work on and prioritize Bill C-27. I'm hoping we can agree to that. I know we're not debating it today, but I just wanted to signal to him that we're supportive of studying this, but would prefer to do so after Bill C-27, if possible.

Thank you.

[The Chair, Liberal, Joël Lightbound]

Thank you, Mr. Turnbull.

Mr. Masse, you now have the floor.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

I want to thank Mr. Garon for this.

I wrote to the Competition Bureau commissioner with Jagmeet Singh, and we have received an acknowledgement that they have it and are looking at the situation. Of course, they don't act on political direction, but they have acknowledged that they have the request and they know of the issue. We wanted to confirm that.

We can circulate the correspondence I just received yesterday from the competition commissioner.

Thank you.

[The Chair, Liberal, Joël Lightbound]

Thank you very much, Mr. Masse.

(Clause 2)

We now return to clause 2 of Bill C‑27 and amendment CPC‑9.

Mr. Williams, you have the floor to debate Mr. Perkins' subamendment.

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

Thank you, Mr. Chair.

Welcome back to everyone who is keeping tabs on Bill C-27.

For those listening at home, we're still working on the amendment on private right of action, an amendment that we're looking at to reinstate at least one line of that. I just wanted to make a few points that I was trying to end with at the last meeting, when we talked about why we believe the powers should be going to the Privacy Commissioner and what private right of action actually means in terms of taking away the tribunal and giving that power to the commissioner.

I believe it means an increased accountability for organizations. A private right of action would create a direct legal route for individuals to seek remedies for privacy violations, therefore increasing accountability of organizations, which is really important when we look at the Privacy Commissioner having that power but also at the ability of those individuals who are going through the Privacy Commissioner first to then take their own legal remedy against organizations that violate their privacy.

We talked about resource allocation for the Privacy Commissioner and the fact that perhaps the Privacy Commissioner would be overburdened. We all know what's happening with the Information Commissioner right now, who has asked for extra funding and is backlogged and is not getting that funding from the government. This would allow individuals to take legal action for privacy breaches and reduce the number of cases the Privacy Commissioner has, even though the commissioner should be getting more funding, depending on the caseload.

There's a deterrent effect in the possibility that facing private lawsuits would act as a deterrent for organizations considering lax data protection practices. The ability to have this through the Privacy Commissioner, of course, would be a deterrent.

On the empowerment of individuals, we've talked about making sure that privacy is a fundamental right. When you give this power to individuals, you're empowering individuals to take action and control their privacy rights, which I think is a very important part of this bill. We perhaps could have a faster resolution of complaints compared to administrative processes handled only or solely by the Privacy Commissioner's office or by the tribunal.

We think this will enhance privacy awareness. As individuals take legal action, it raises public awareness about privacy rights and the importance of data protection, the more that this gets into the hands of those individuals.

There could be a reduction in systemic violations. The threat of legal action from multiple individuals could encourage organizations to implement more robust privacy practices, reducing the likelihood of systemic privacy violations and reducing the overall burden on the Privacy Commissioner.

It goes on and on, but moreover, I think it's a complementary role. The private right to action serves as a complementary mechanism to the Privacy Commissioner's oversight, ensuring a more comprehensive and multi-faceted approach to privacy protection.

When we're looking at this, I think we all agree that this should be going first to the Privacy Commissioner, that the Privacy Commissioner should be the first step, but that private right of action is really important in giving that power to the Privacy Commissioner so the commissioner can handle and administer fines and we still have the option of the courts. Then we would find that the tribunal would be unneeded.

I'll leave it at that, Mr. Chair.

[The Chair, Liberal, Joël Lightbound]

Thank you, Mr. Williams.

Do I have any other speakers? Mr. Vis, were you on the list?

We have Mr. Vis and then Mr. Masse.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

In his testimony, Mr. Geist talked about whether a tribunal of this sort would be respected. He said there was a lot of public skepticism after the Rogers-Shaw deal.

Just to clarify, because the amendment we have before us today will ultimately impact other parts of this bill, if a tribunal heard a case and then it had to go to court, would the court start de novo on the issue at hand?

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

Thank you very much for the question.

The way the CPPA is structured now, a tribunal's finding would be considered firm and final and could not be appealed to a court. It would only be subject to a judicial review, which, as we discussed last meeting, is a much different standard, and could only be reviewed on the basis of essentially the tribunal acting in a manner that was outside of its mandate.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

During her testimony, Diane McLeod spoke about the complexity this will provide for provincial jurisdictions with respect to joint investigations with British Columbia, Ontario and Alberta, specifically.

What does the department say in response to Ms. McLeod's testimony, which I'm sure you're aware of and which I think contains a very valid point?

[Samir Chhabra]

Thanks again for the question. As we have discussed over the last couple of meetings, there would be no impact on the investigatory functions of the Office of the Privacy Commissioner as a result of having a tribunal available. The tribunal would have two main functions, as we discussed recently. The first would be to make decisions about administrative monetary penalties that would be recommended by the Office of the Privacy Commissioner, and the second would be to form a body to hear appeals of those decisions.

It would have no impact whatsoever, as far as we're concerned, on the ability of the Privacy Commissioner to enter into joint investigations, to develop investigatory approaches with provinces, and to share data and findings. In fact, in many places throughout the CPPA, we have taken pains to ensure that opportunities are made available for data and information sharing on the basis of the Privacy Commissioner's working with other regulatory officers, including the competition commissioner.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Since Ms. McLeod represents the privacy office in Alberta, would the department at least acknowledge that right now the provincial commissions have a view that is different from that of the Department of Industry with respect to joint investigations, despite the assurances you're providing? Is that fair?

[Samir Chhabra]

I'll ask my colleague Ms. Angus to provide a bit more detail on that point.

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

I want to clarify Ms. Diane McLeod's testimony. She did say, “Our informal case resolution team operates separately from our adjudication team. When a file moves to inquiry, our adjudicators conduct a de novo hearing.” What I want to say is that, in Alberta, there is this separation between the adjudicative and the investigative functions that is just not there in the CPPA with the way it's currently structured, and that's not brought in by the amendment.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Ms. McLeod also said, “We are concerned about whether the inclusion of the tribunal as an appeal body to the Privacy Commissioner's orders would impact our ability to conduct joint investigations.”

Will the department acknowledge that, as it is right now, the privacy commissioner of Alberta still has outstanding concerns about the ability of the Privacy Commissioner, in conjunction with the tribunal, if this legislation passes, to conduct joint investigations, and that there needs to be some work between Industry Canada and those respective provincial bodies to find a mutually agreeable approach if investigations are going to go forward in the future?

What we heard—and we haven't heard anything different from the privacy commissioner of Alberta—is that right now their interpretation is different from yours.

[Samir Chhabra]

Thank you for the question. I certainly am prepared to acknowledge that there are multiple perspectives and viewpoints that could be taken on this point. However, I think an informed reading of the proposed bill that's been put before this committee for consideration would make it very clear that there are no impacts on the partnership or joint investigation work.

The role of the tribunal that's been put forward is circumscribed to very limited activities and is really designed to ensure that there is procedural fairness and that there is impartiality in the system, which, as the committee would well understand, is a constitutional guarantee. As Ms. Angus just pointed out, even the Alberta system has a separation between the investigatory and adjudicative functions built into the system. For that reason, it's critical to ensure that as the Privacy Commissioner moves from having an ombuds function towards being an actual regulator with teeth—let's call it for lack of a better term—there is an element of procedural fairness and impartiality built into that system.

Failing that, there is an extremely high likelihood of overturning these decisions based on constitutional grounds or constitutional challenge or based on a lack of impartiality on the part of the OPC. For that reason, actually instituting the tribunal is an important mechanism by which to reinforce and strengthen the OPC's ability. If we imagine a scenario in which there is no tribunal, it's very likely that any finding of the OPC or any action of the OPC, including the levying of an administrative monetary penalty, for example, could be overturned on constitutional grounds, and that would send us back to a situation of having a toothless regulator, which I think is broadly understood to be the state of affairs that we're trying to move away from.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Thank you. I'm going to follow up with the privacy commissioner of Alberta. I want to hear further from them about their position on what was stated, but I take your comments in good faith.

[Samir Chhabra]

May I add just one further point on that, if that's okay?

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Yes. Thank you.

[Samir Chhabra]

I just want to point out a specific section of the act, in case it's helpful regarding your question. That's proposed subsection 119(2), which allows the OPC to enter into agreements with the provinces.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Thank you so much.

Dr. Scassa, from the University of Ottawa, spoke in October about the independence of the appointed tribunal. It's my understanding that there will be six members of the tribunal. Is that correct, or is it five?

[Samir Chhabra]

Thanks very much for the question.

The tribunal as proposed would have between three and six members in total. At least three of those members must have experience in the field of information and privacy law.

They would be appointed by the GIC and also have the remuneration fixed by the GIC. The maximum term would be five years. They could be reappointed for one or more terms, not exceeding three years each. They could be full- or part-time members.

The chairperson would supervise the distribution and assignment of members to hear matters brought before the tribunal, which could be heard by panels of those members as well, if considered appropriate.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Three would have to be considered privacy experts, but would the other—possibly up to three—members of the tribunal be subject to a GIC appointment, or would they be appointed directly by the minister of industry?