Industry Committee on May 29th, 2024

[Tony Van Bynen, Liberal, Newmarket—Aurora, ON]

You keep talking about de novo. There are three levels of courts. Is that right? You mentioned that each case is a de novo case. Can you explain what that means?

[Runa Angus]

The de novo is from the Privacy Commissioner to the Federal Court, which is the case right now.

What we mean by de novo is that, because the Privacy Commissioner right now does not have any decision-making power—Bill C-27 contemplates that decision-making power—the court doesn't give any deference to the Privacy Commissioner's findings. It has to make its case like anyone else would have to make their case if they took a company or any other individual to court.

There is no deference provided. That's something that's changing under the process we've contemplated in Bill C-27, where the tribunal would have to provide deference to the commissioner on questions of fact and mixed fact and law. That's what the de novo is. It's really the court substituting its own analysis for the Privacy Commissioner's analysis.

[Tony Van Bynen, Liberal, Newmarket—Aurora, ON]

You mentioned the term “deference”. What does that mean?

[Runa Angus]

“Deference” means that it's a standard of review. Deference would just be how much you're relying on the commissioner's findings.

What proposed subsection 103(2) of the CPPA contemplates is that, on questions of fact and on questions of mixed fact and law, the tribunal has to go with what the commissioner said about it, unless there is some compelling reason not to. In most cases, that means that whatever the commissioner found in terms of their findings of fact is final, so the commissioner's findings are a very high bar to overturn, which would not be the case in a court proceeding.

[Samir Chhabra]

There is another point I'd like to make as well about the deference piece that's really important to recognize. In a situation where the Privacy Commissioner is faced with a de novo proceeding at a court, the amount of time, resources and effort required on the part of the commissioner to litigate that single case would be absolutely significant.

Over time, what we expect would happen is that this would start to detract from the ability of the commissioner to have the appropriate resources to dedicate to new investigations, new work, new engagement and new advocacy functions, because more and more of it would get tied up in working through the litigation process. Some of these cases could take several years, depending on how many levels of court the case goes to.

Not only does it slow down access to justice for the original complainants, not only does it slow down the system in terms of tying up court time, it also ties up the commissioner's time significantly. That means that there are fewer resources available to focus on investigations and the challenges that are appearing out there in the market.

[Tony Van Bynen, Liberal, Newmarket—Aurora, ON]

I understand the process better now after those explanations.

However, I'm concerned about fairness. We talked about deference and de novo. This is a de novo review or hearing, so if you go into the courts, does that mean that the issues, principles and facts can all be challenged and started all over again? Does that put Joe average person, who's been offended, at a disadvantage, because he has to face a whole new review, a whole new consideration and a whole new offence to be determined?

[Runa Angus]

That is absolutely correct.

[Tony Van Bynen, Liberal, Newmarket—Aurora, ON]

Okay, so the fairness isn't there in terms of an unequal playing field as far as resources go, if, in fact, we're concerned about the average person who might have a violation by some of these large players.

Thank you. Those were my questions, Mr. Chair.

[The Chair, Liberal, Joël Lightbound]

Thank you very much, Mr. Van Bynen.

Mr. Badawey, you have the floor.

[Vance Badawey, Liberal, Niagara Centre, ON]

Thank you, Mr. Chairman.

Although new on this committee, it was a quick process of learning through the last couple of days with all the materials we've been going through. With that, understanding where we're at right now is simply a comparison between the tribunal and the courts.

Please correct me if I'm wrong when I pose the question. I'm hearing that the decision by a tribunal is, in fact, final. There is no appeal to the courts.

Having said that, in the process, there is an opportunity to have mechanisms to ensure that the appellants are able to have their day with respect to some of the things they're trying to accomplish. What I mean by that is that there are mechanisms, such as mediation, before the process unfolds with respect to what the tribunal has to deliberate versus a court. A court would be more like an arbitration, where there are no mechanisms in place to mediate. It's just simply a decision that's made, and that's final.

With that, we've heard that a court of law is more costly to the appellant. We've heard that it takes more time. It can be a lot more time. It can be years. We've heard that the experience on the issues is more apparent with a tribunal versus a court. We've heard that procedural fairness with respect to a tribunal versus a court, again, is apparent.

Here is one question I have. In a tribunal versus a court of law, can it actually be dragged on even further, over and above the process, by the defendant in a court of law? Can it be dragged on and on over time, especially if it's AI, and just be in there for years if not decades, based on the wishes of one of the parties?

[Samir Chhabra]

As my colleague Ms. Angus pointed out earlier, the rules of procedure would be quite different in the case of a tribunal versus a court. It means it's less likely to be susceptible to being gamed. It's also taking a much narrower perspective on the issue and focusing only on the appeal of the commissioner's decision in a manner that gives deference to the commissioner and the OPC. What that means is that it's looking at a narrower set of issues, which is not procedurally constrained the way a court may be, and it means it's less subject to being gamed.

[Vance Badawey, Liberal, Niagara Centre, ON]

I'm having a hard time hearing.

[The Chair, Liberal, Joël Lightbound]

You're right, Mr. Badawey.

Colleagues, I hear a lot of chatter around the room. Please keep it down.

Go ahead, Mr. Chhabra.

[Samir Chhabra]

As I was pointing out, because of the differences in rules of procedure and because of the differences in the deference offered, tribunal proceedings would be expected to be much more efficient and quick, not even considering the fact that you'd then have a final decision that could not be further appealed.

Therefore, there are multiple ways in which this process would be more efficient and speedier in order to reach a conclusion and be more accessible.

[Vance Badawey, Liberal, Niagara Centre, ON]

Thank you.

I am impressing upon the business of government being more efficient and, of course—most importantly—more customer-friendly when appellants have these appeals. Again, it's tribunal versus courts.

I'm going to jump here now, with respect to the Privacy Commissioner: We heard that the Privacy Commissioner, to some extent, has an ombudsman-type role and advocates. I think what's more important, while they're advocating, is navigating—having those mechanisms available to them while they're trying to navigate based on what they're advocating. Again, in the best interest of the appellant.... I'm hearing that the tribunal versus the courts is more beneficial, especially—and I want to go back to this—with the ability, while you're navigating, to look at the opportunity to mediate and therefore come to some consensus, again, in fairness.

Some colleagues on the committee have cited the opinions of privacy commissioners about the tribunal, including the Alberta privacy commissioner. In your previous testimony, you mentioned there are key differences between the powers and responsibilities of the federal Office of the Privacy Commissioner under the CPPA compared with provincial commissioners.

Can you highlight those differences and why they make having a tribunal so important? I really want to emphasize fairness to the appellant at the tribunal level versus the courts.

[Samir Chhabra]

Thank you for the question. Again, it's an important one.

Alberta and British Columbia, to take two examples, don't have the ability to levy administrative monetary penalties. Quebec, in fact, does, but it has an internal model that operates as a tribunal within the CAI. Those are very important differences in the way the processes function. While there may not be the need for a tribunal in some instances, if the desire of Parliament is to put in place a strong regulator with strong enforcement powers, that's what triggers the need to have procedural fairness and impartiality of process baked into the process. It really comes down to a choice about the policy objective Parliament is trying to achieve. If it's to imbue a strong regulator with enforcement powers—one with the ability to levy administrative and monetary penalties up to $10 million, as contemplated in the bill—it needs to have that concordant procedural fairness aspect to it.

As well, Alberta and British Columbia do not have the ability to enter into compliance agreements, whereas CPPA contemplates a range of tools available to the commissioner to bring cases to ground through mediation, arbitration or negotiation directly with the complainant and the company in question, in order to develop a robust compliance agreement that includes behavioural or process changes as well as penalties—contemplating damages for those who've suffered from the contravention of the act. This is a very powerful set of tools we're putting before the commissioner. Providing that also means providing a clear mechanism for recourse and ensuring impartiality and due process are respected throughout that process.

[Vance Badawey, Liberal, Niagara Centre, ON]

That's a good point—impartiality and due process.

With that said—and I'm going to keep coming back to this—it's about the opportunity to mediate versus arbitrate. That is, in my view, the difference between a tribunal and a court of law. There seems to be some confusion among colleagues on the committee about the development of expertise the tribunal represents. There's a great comparison between, again, the tribunal versus the court of law, in terms of expertise.

Can you talk about why the tribunal will shorten the learning curve for dealing with privacy cases in Canada on account of the experts required to make up that body? That's point one. Point two is this: Can you delve into the lack of expertise if, in fact, it goes directly to a court of law and, of course, the repercussions because of that?

[Samir Chhabra]

There are actually two important ways in which we believe the expertise of the tribunal would function in this instance. The first is that, as we previously pointed out, at least three of the members appointed need to have previous expertise and experience in privacy and information law.

The second and really critical piece is that, by forming a dedicated body that would hear all of the cases coming through the CPPA, they would quickly develop expertise, understanding and efficiencies in recognizing certain points of fact and common patterns or issues that are emerging across a number of different domains. In that way, they would be much better equipped to assess and respond to the commissioner's findings and recommendations as compared to a general court, which would not have, at its base, expert members who are focused in privacy and information law and would not necessarily be seeing multiple cases in the same domain. It would, therefore, not be able to develop over time that degree of expertise, familiarity and comfort with the issues.

This becomes particularly important in a domain like privacy and information where we're, for the most part, talking about highly technical issues that change rapidly based on the changing technology and the changing utilization of data. Again, it reinforces the importance of having expertise and a degree of focus and dedication on the issue.

[Vance Badawey, Liberal, Niagara Centre, ON]

I'm really relying on, as you mentioned earlier, the policy objectives. What comes directly to front of mind is fairness. With that said, the range of tools, the enforcement powers and strong powers that a tribunal would have to offer the process with respect to fairness and meeting those outcomes are less cost, less time for the appellant and the inability of the other side to drag on over time based on its interests, which we often see in the court of law.

Again, I want to go back to what I said earlier about advocating and, more importantly, navigating in terms of what your objectives are with respect to your advocating. With regard to compliance agreements' being negotiated, hopefully most times they'll be through mediation versus having them go the full field. That's appealing to me.

From my municipal experience as a former mayor for 14 years, I have great experience in witnessing a lot of tribunals in action, whether through the Planning Act vis-à-vis through the Drainage Act, with courts of revision and tribunals, and when we look at the tenant board provincially and at its adjudication process. The list goes on. Again, I'll go back to that word, “fairness”. How did it actually provide that navigation, with respect to the objectives, based on the advocation of fairness?

When we look at the alternative dispute mechanisms that are available in comparison to a court of law, we see once again that they really offer that ability for a fairer process for the appellant. Lord knows, in some of the cases, considering who they're up against, they're going to need that fairness because—let's face it—sometimes it's a David-and-Goliath situation. We're already seeing that in some cases, especially with what we're discussing today.

Therefore, with respect to that comment, I think that we all agree that there needs to be a system to review decisions made by the Privacy Commissioner. However, there may be some hesitation around the table with regard to why it has to be in the form of a tribunal versus a court, so I want to go back to that.

I believe that the intention was to support Canadians and small businesses without extensive legal resources, costs, time and everything I've mentioned already. Is that so? With that, what are some of the other ideas or thoughts that can be added to this conversation?

[Samir Chhabra]

I think it's an important issue to unpack a little bit. Part of the rationale here is to understand that having an expert tribunal focused on the issues and dedicated to this work does offer many benefits to the administration of justice and to ensuring that the law is effectively and consistently applied. It also makes sure that the commissioner and the OPC are central in both the fact-finding and the investigation. The role of the OPC becomes strengthened by having an expert tribunal available to hear the appeals.

In a situation where a tribunal gives deference to the Privacy Commissioner, that is a much more robust and powerful hand for the Privacy Commissioner to play, even if the case does not go to the tribunal at the end of the day. What I mean by that is that it actually motivates parties to work with the commissioner to resolve their cases because they recognize that, if they choose to take it to the tribunal, they would be doing so on the basis of playing a weaker hand in front of that tribunal because of the deference the tribunal must show to the commissioner.

That is not the case with the courts, and we've seen that over the last 20 years. A number of cases have gone to the courts, and the Privacy Commissioner has lost 70% of the cases in which he or she was a primary appellant. Seventy per cent of the time the Privacy Commissioner's findings or administrative monetary penalty recommendations have been overturned.

[Vance Badawey, Liberal, Niagara Centre, ON]

Again.... I guess this is somewhat becoming the narrative of my questioning: the fairness. That's the bottom line, in my view, in my opinion: fairness. Less cost, less time, the possibility for mediation.... When we look at that compared to the courts, with more cost, more time and, to some extent, depending on who the Goliath may be, a lot more time, possibly decades, are we actually meeting our objective? Are we then actually meeting the outcomes that we would otherwise expect to come out of the process?

Finally, is there the ability for it to then lend itself to other issues that may arise within the same sector, the same realm, if you know what I mean? I guess I can pose this in the form of a question. Would, then, a decision made by a tribunal be considered part of case law in terms of other situations that might arise so that it can then lend itself to expediting or mediating other issues that might come to the Privacy Commissioner and/or possibly the tribunal and/or a court of law?

[Samir Chhabra]

Thanks for the question. It's a good one.

It would form the corpus of decisions that would inform the OPC, and it would inform the interpretation and application of the CPPA. Within the internal world of the consumer privacy protection act, each decision of the tribunal would have an effect of setting a precedent in work within the CPPA. It would not affect the broader court system, but it would really be functional for the CPPA, which is, I think, what is intended.

[Vance Badawey, Liberal, Niagara Centre, ON]

The outcome here that we want to come to is with respect to privacy. We can see what's out there right now, and we can see the effects on people of what's out there right now. The second narrative that I'm leaning now towards is people. It's about the effects on people, and it's about having fairness to deal with some of the effects on people. If that's the outcome that we're all looking for—which I would expect it would be as members of Parliament, regardless of what party we may belong to—the outcome is to ensure that these are dealt with in a timely and fair manner.

In your opinion, as the people who know a heck of a lot more than we do in this realm, what is the bottom line in terms of meeting those outcomes between a tribunal and a court of law?

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

I have all the testimony if you want to see it.

[Voices]

Oh, oh!