Industry Committee on May 29th, 2024

[Ryan Turnbull, Liberal, Whitby, ON]

I believe last time we talked about how this creates a bifurcation, that what Mr. Perkins proposed would essentially create two potential pathways for individuals to pursue.

One would be through the OPC, which I think was originally contemplated to be the main interpreter of this law, and then this would create another track where someone essentially would be able to go through the court system. I hear the argument that, yes, some things could still end up in the court system. I get that, but I think that having the OPC and the tribunal set up seems to streamline the process so that less would be needed to be heard before the courts.

I guess what I'm trying to come back to is that I think there are some significant points that we heard on the concept of natural justice being so important to how this legislation was crafted. To me, I think that, as a core set of principles, that seems to be at the heart of the debate we're having with regard to both. It's coming up with regard to the subamendment but also with regard to the amendment.

I want to give Mr. Chhabra, perhaps, a little bit more time to just go into the details of.... Again, my understanding of natural justice is that it's supposed to maintain public confidence in the legal system and that it is a set of principles where you're supposed to be able to, to the greatest degree possible, remove bias and have a right to a fair hearing. However, there may be other pieces of it that he would like to highlight.

Could you maybe speak to that? It could be either one of you, so if you would like to contribute too, Ms. Angus, that would be helpful.

Thank you.

[Samir Chhabra]

Perhaps I'll get started, and Ms. Angus can add in if she has additional points to add.

I think it's a really important point that you're raising, and it's one that we've been trying to elaborate for the committee's benefit over the last couple of meetings.

Any institution of this nature, whether in Canada or in comparable democracies abroad, would, by design, build in some procedural safeguards, build in impartiality and ensure that, in Canada in particular, the constitutional requirement for a fair and impartial hearing has been met. In the case of CPC-9, which seeks to remove the tribunal in its entirety, you are left with a scenario in which the Office of the Privacy Commissioner would be first prioritizing the investigations, prioritizing what to go in and investigate, and then conducting the investigation, taking decisions on the basis of the investigation and, in this case, levying very significant administrative monetary penalties as contemplated under the CPPA.

That approach, in our view, would open the OPC's findings and decisions to constitutional challenges in court. As we've previously highlighted, going to court is a more costly, time-consuming exercise, and it would be a de novo proceeding where there would be no deference paid to the commissioner's findings.

In addition to that, the risk of having the constitutional challenge result in the case being dismissed is quite significant. If that were to be the case, you'd essentially be back at square one, where we are today, where you'd have a toothless regulator without the ability to effectively govern and kind of guide companies' activities in the market.

[Runa Angus]

I'd just like to add one point, and that is what the courts themselves have said about administrative tribunals. My colleague discussed how the process for going to the courts can be expensive and long, and I just want to say that the Supreme Court of Canada has also recognized that. In Vavilov, which is sort of the seminal case with respect to administrative law, the Supreme Court itself said that:

administrative dispute-resolution processes are generally “[d]esigned to be less cumbersome, less expensive, less formal and less delayed” than their judicial counterparts—but “no less effectiv[e] or credibl[e]”.

This is the Supreme Court of Canada itself acknowledging that administrative tribunals allow access to justice in a way that's faster and cheaper than it would be able to, so I think that's an important point to make.

[Ryan Turnbull, Liberal, Whitby, ON]

Again, that's coming from the Supreme Court of Canada. You would think it would carry some weight in terms of our debate if the Supreme Court of Canada itself recognizes the value of administrative dispute mechanisms like the tribunal and that it actually enhances.... Does the tribunal really just enhance access to justice in a sense? I mean, is that a stretch or am I reading too much into it? Is that really what we're sort of saying? That it enhances due process, helps to remove or maintain impartiality or removes bias...?

Can you maybe speak to that? I get that your argument hinges around it. This is part of the disagreement here and the debate we're having. Some are saying that this tribunal is going to add bureaucracy and delay things, and I think that's the opposite of what I hear your expert testimony telling us, which is that it is not going to do that. It's going to be less cumbersome, less expensive and get to a resolution faster.

Could you speak to whether this enhances due process and removes bias?

[Samir Chhabra]

There are a couple of elements in your question that I think are worth unpacking.

I think the first is to understand that the tribunal would come into effect or be engaged in a case only where an appeal was sought by an individual involved in the proceedings, and it is designed to provide that procedural fairness and that recourse mechanism in a way that is much more efficient than going to the courts. It does both: provides the procedural fairness aspect and does so in a manner that is more accessible, less costly and certainly less time-consuming.

When you recognize especially that the tribunal would have the ability to take final decisions that could only be judicially reviewed, as opposed to being appealed themselves, and if you compare that to a hypothetical case where it's going to the courts, you would have the court, the Court of Appeal and the Supreme Court all as potential bodies that would be engaged in hearing an appeal, which, as we know, would take many years to resolve.

That's why, as the proceedings have continued here, we've tried to take pains to point out that, in fact, establishing the tribunal gives the OPC more power, more authority and more leeway, as well as more credibility, and certainly reduces or very much minimizes the risk of the Privacy Commissioner's finding being overturned as a result of a lack of impartiality in the process.

This isn't about any kind of accusation of bias on the part of any officer or office-holder. This is really about respecting the Constitution and understanding that impartiality needs to be enforced, that it needs to be built in structurally and that proceedings and procedures need to have that basis if they're going to be testable in court and they're going to be sustainable in that environment.

The commissioner today, as we pointed out before, plays an ombuds function, plays an education function and plays an advocacy function and an engagement function. These are all important elements of the way that the Privacy Commissioner is empowered to do his job and to fulfill the role.

It's important to recognize that attempting to turn that into something much more adversarial is a significant challenge. As we've pointed out earlier, if there were attempts made to adjust the office and to put in place safeguards within the organization, that could be quite challenging, given that the Privacy Commissioner also has responsibility for enforcing the Privacy Act. It could also make it much more difficult for the commissioner to engage with companies and with Canadians to play the advocacy, support and ombuds function that he already does play.

Using the tribunal as the mechanism to hear appeals and to make final decisions with regard to administrative monetary penalties allows the commissioner to continue playing the important roles that he plays today. It also adds significant enforcement powers, as we've discussed before, including the order-making powers, which are very significant.

It's also important to note that the government amendments that have been tabled to this committee also would give the commissioner the ability to enter into compliance agreements, which would obviate the need to go to the tribunal at all. If the parties were so willing to engage on that compliance agreement, the commissioner would have the ability to negotiate not just fines but also damages, which would in fact eliminate the need for somebody to take on a private right of action or take on a separate case civilly, because in fact they could be made whole through the compliance agreement process itself.

In a number of different ways, we've thought through very carefully how to create a system that is robust, that is efficient, that is effective and that meets the standards required for the decisions to be upheld by a court.

Do you want to add anything?

[Runa Angus]

I would add to my colleague's point that the OPC, in addition to the order-making powers, has the ability to engage in alternative dispute resolution mechanisms, including mediation and conciliation. That is another avenue the OPC can use, which obviates the need for parties to go to a tribunal. The OPC has ample powers to resolve disputes before even going to the investigation stage. In fact, it does. The OPC actually resolves about 70% of complaints through alternative dispute resolution mechanisms.

[Ryan Turnbull, Liberal, Whitby, ON]

Thank you for that. It was very helpful. I even learned a couple of things that I wasn't all that clear about prior to this, so thank you for your testimony.

What I'm stuck on here is the comment you made about what's being proposed in terms of the subamendment. If an amendment were to pass and remove the tribunal altogether, it essentially opens up any of the OPC's decisions to constitutional challenges. That seems like it could really erode public confidence in the OPC's decisions and findings.

Would it not do that over time, if that became a fairly regular occurrence? To me, it would be very tough to maintain an OPC with the powers that are contemplated within this bill. Is that not the case?

[Runa Angus]

Thank you very much for the question.

I think the consequences can actually go further than that. If there is a charter or constitutional challenge, the enforcement system—as contemplated by CPC-9—does not meet principles of natural justice and does not guarantee perception of a free and independent hearing. The court may render certain parts of the enforcement inoperable. This may mean that a lot of the new powers we're giving to the OPC through the CPPA may be rendered inoperable, which then brings us pretty much to the current situation, which is an OPC that has an ombuds role but doesn't have a lot of enforcement power. It becomes a toothless regulator, as my colleague said.

That was the number one piece of feedback we've heard from stakeholders since 2018, as we've been consulting on this: What we need is an OPC with more significant enforcement powers. That's what we've done through the CPPA. Of course, with more powers, there has to be an accessible mechanism for oversight that has a constitutional guarantee of respecting principles of natural justice.

The current version of the act tries to balance all of those different considerations in a way that's accessible, flexible and improves outcomes for all Canadians.

[Ryan Turnbull, Liberal, Whitby, ON]

Thank you for that. That sounds like it makes sense to me.

It sounds like removing the tribunal not only makes any appeal process more costly, more time-consuming and perhaps less effective but also opens up the possibility for constitutional challenges, which may remove the teeth from the OPC. Those sound like pretty significant unintended consequences of simply saying, “Well, we don't like the tribunal. It seems overly bureaucratic or something.” It's very tough because, at this point, I think your testimony has provided such great, detailed evidence for why this is truly needed. However, I don't sense that my colleagues on the other side are being swayed by the very good and in-depth arguments being made.

Some of the things that came up in some of the other aspects of this conversation, or in other parts of it, were joint investigations or interjurisdictional collaborations, let's say, between the federal OPC and the provinces or territories. Mr. Chhabra mentioned proposed subsection 119(2), I think, about agreements with provinces and territories.

Could you go into that a bit more and reassure us that some part of the bill allows for and contemplates joint efforts as both possible and maybe even encouraged where needed?

[Runa Angus]

What proposed subsection 119(2) does is allow the OPC to enter into agreements or arrangements with the provinces to do a number of things. They can collaborate on research and they can collaborate on guidance, but more importantly, they can coordinate their activities to provide for mechanisms for the handling of any complaint in which they are mutually interested. That's the part that authorizes joint investigations and allows them to collaborate on investigations quite consequently.

By the way, they already do that, so this is a continuation of what the OPC is already able to do, and this wouldn't change under the CPPA in any manner.

[Ryan Turnbull, Liberal, Whitby, ON]

Thank you for that. That's very helpful. I think that could reassure folks who may be skeptical about the OPC being able to collaborate effectively on joint investigations or other activities that are within his or her purview.

The other thing that strikes me is that one of the things that is hard to compare is how long an appeal would take through the court system and how much more costly it would be compared to going through the administrative tribunal route. I can't remember how many times Mr. Williams said in his original opening remarks that justice delayed is justice denied. I was thinking the whole time—and am still thinking, at this very moment—how we're hearing very clearly that the tribunal is not going to delay justice. What's going to delay justice is not having a tribunal, because the tribunal is going to speed up the process and remove and compress the timeline.

How do we know that, though? That's what I'm looking for. Do we have any evidence and documentation of this that could be submitted to the committee?

I know it would be hard to do a comparison because you wouldn't take both routes, but maybe there's some way to show and reassure folks who are skeptical about that, because we've heard quite a few arguments that members opposite think it is going to delay justice, it is going to be more bureaucratic and it's going to add a layer that's unneeded.

I think having any additional evidence and data on that would be very helpful. Is there anything you could provide to further substantiate the fact that the tribunal will actually make things more effective, speed things up and make them less costly?

[Samir Chhabra]

Sure. I'm happy to respond. Thank you for the question.

Our understanding is that, at the moment, it takes two years on average for a case to reach the very first court, which is the Federal Court. As I'm sure many of the members of the committee are familiar with, it can take many years beyond that to go through the follow-on approaches of the Federal Court of Appeal and then to go to the Supreme Court.

I'll take a moment to draw a bit of a contrast to the Competition Tribunal, because it's been raised in this committee in recent days to make a comparison between the speed or efficacy of one tribunal versus another.

Again, notwithstanding the fact that they would both be administrative tribunals in nature, the commissioner of competition and the Competition Bureau have quite different approaches and powers from those being contemplated here under the CPPA. The Competition Bureau has no power to issue orders or administrative monetary penalties, whereas the OPC under the CPPA would have the power to issue orders without going to the tribunal and the power to recommend administrative monetary penalties.

The Competition Tribunal conducts “first instance” adjudication and imposes those orders in AMPs. By contrast, the personal information and data protection tribunal would hear appeals against the OPC's findings and compliance orders and decisions. It's a very different approach. The Competition Tribunal shows no deference to the Competition Bureau, whereas the tribunal, in this instance, must apply a deferential standard.

Appreciating that some committee members have raised concerns about efficacy or approaches in comparisons to other existing tribunals, I just wanted to put on the table that this is, in fact, structured to be quite different in its approach.

Ms. Angus will add a bit to that.

[Runa Angus]

I just wanted to add perhaps some more context.

In the case of the Social Security Tribunal, that tribunal is supported by the administrative tribunals support service system, which we have contemplated would also support the tribunal that is contemplated under Bill C-27. Again, compared to the two years the OPC is currently facing, the Social Security Tribunal heard cases in 2021 to 2022, for example, in 43 days.

There is a very substantial difference between the time in which a specialized tribunal can hear a case as opposed to the courts. That's something that, as I mentioned earlier, the courts themselves have recognized.

[Ryan Turnbull, Liberal, Whitby, ON]

What I hear from that is that not all tribunals are created equal in the sense that they're different and that some of them can move faster than others. What assurances can we have that the tribunal that's contemplated in this particular legislation would be faster than that two-year appeal process in Federal Court? Obviously, if cases went beyond that, which they wouldn't necessarily have to, it would take many more years. Is there an estimated timeline?

I imagine it's probably hard to say, at this point, because it doesn't exist. You'd want to stand it up and have it function for a while to get a sense, probably, of how long things would take to get through the tribunal. Do we have any way of knowing whether the tribunal contemplated in this case would take much less time than two years on the average case?

[Samir Chhabra]

I think Ms. Angus in fact provided probably the best estimator available, which is to look at how quickly other tribunals are able to get to cases as a way of estimating how this one would operate. You're thinking about a dedicated group of resources with expertise in the issues, who are able to be deployed to cases rapidly. Of course, it depends on how many cases are being brought forward to the tribunal and how active the Privacy Commissioner may be with the new powers granted. It's very difficult to estimate what the overall caseload would be.

The approach that's been taken here is meant to ensure efficiency in at least a couple of ways. One is to have a dedicated group of experts who grow their expertise over time in dealing with these cases so that they're able to move through them much more quickly and efficiently. It's also to avoid follow-on levels of appeal, which is a very significant difference. Because their decisions can only be judicially reviewed, that eliminates many years, potentially, from a follow-on process. In so doing, I think it offers a much more robust yet efficient approach.

[Ryan Turnbull, Liberal, Whitby, ON]

Thanks. I appreciate that.

It sounds as though it might be more along the lines of the Social Security Tribunal that you were mentioning. Certainly those follow-on processes through the court system would have a very extended time period. I understand that, because the only recourse after the tribunal would hear an appeal would be a judicial review, which is very different from the other path, as we were discussing, through the court system. That's interesting.

I think you were implying—and I just want to maybe get you to draw this point out a little bit further—that the OPC's new powers, which include the ability to impose the monetary penalties that are being proposed in this legislation, are really significant because they include the power to form compliance agreements and others. Significant power will be vested in the OPC as is contemplated in this bill. That is all the more reason perhaps to have a tribunal, given the principles of natural justice that having that investigative and adjudicative function in one office-holder or one person, the OPC, would perhaps be perceived as having too much of a concentration of power with no check or balance to that power.

That to me is what you said. I'm putting it in my own words, but would you like to maybe just clarify whether that's actually what you meant to say and whether or not I'm misinterpreting? I think that's what I heard you say, that the new powers vested in the OPC, which are above and beyond what perhaps other commissioners have, with the significance of the penalties, etc., justify having a sort of check and balance built into the system to ensure that natural justice can be preserved.

[Samir Chhabra]

Thank you. I think that's a very accurate encapsulation of the testimony we've provided.

[Ryan Turnbull, Liberal, Whitby, ON]

That's all for me.

Thanks.

[The Chair, Liberal, Joël Lightbound]

Thank you very much, Mr. Turnbull.

I now have Mr. Van Bynen.

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

Thank you, Mr. Chair.

I'm not a lawyer, so I probably need some things clarified. That's probably a good thing. I've had some experiences with tribunals, particularly in my 12 years of being a municipal mayor. Actually, I'm of the view that these tribunals happen to expedite the situation. They allow us to develop expertise, as we've heard over and over again. I've seen them work effectively, particularly in the province of Ontario. I have some concerns around the uneven playing field that we're looking at in the absence of a tribunal.

For an issue going to the Privacy Commissioner, what would that cost? My vision of an infringement of privacy is that it will likely involve the big guys with the big platforms versus someone who's had their privacy violated. I see that right from the very beginning there's an uneven playing field in terms of resources and dollars. What do you see as the initial stages? What I saw with the municipal board was that, if residents had an issue, they could attend the municipal board and not have to engage legal counsel and they could be heard. First the counsel would hear what they had to say, and then the municipal board would hear what their issues were.

Let's start from stage one. If someone has an issue with Meta, what do they do and what's it going to cost them approximately?

[Runa Angus]

Thank you very much for the question.

If somebody has an issue with Meta, the first thing they can do is send a complaint to the Office of the Privacy Commissioner. That costs nothing. You can do it online.

The Privacy Commissioner can look at that complaint and seek a resolution through alternative dispute mechanisms such as conciliation or mediation. To be clear, those are very flexible mechanisms allowing parties to agree on a resolution that can include damages, for example. It can be resolved right there. In fact, the OPC resolves 70% of the complaints it receives at a very early stage of the process.

If that's not possible, the Privacy Commissioner can undertake an investigation and has very broad powers with respect to that investigation. It can ask for documents and talk to witnesses—all of the investigative powers it needs to resolve the complaint.

It can then proceed, because we've given the Privacy Commissioner additional powers in the CPPA. If they want to go forward, they can then start an inquiry. The inquiry allows the OPC to provide some sort of procedural guarantee to parties. They would have to listen to all of the parties involved, but they could conduct those hearings in private. It's not like a court. It's not like a tribunal. Then, at the end of the inquiry, they issue a finding of whether there was a contravention of the act or not. In addition to that finding, they could issue a compliance order asking Meta, in this case—or any other company—to do something or not do something, in order to resolve the solution. It is only if that company decides not to....

Actually, before I get there, there's also the other avenue for the OPC, which is to enter into a compliance agreement. This is a voluntary agreement. The company would have to agree to enter into that agreement. There are government amendments that allow financial consideration to be part of that agreement as well. This could be a substitute for AMPs, but it could also cover damages. That's another avenue.

However, if that avenue fails and the company doesn't want to undertake the compliance order or make changes based on the OPC's findings, it can appeal that finding to a tribunal. It's very much an appeal. The OPC, in the first instance, has the power to ask the company to do something or not do something. Only if the company does not agree with that do they have a mechanism to dispute those findings. That's the role the tribunal plays. The OPC can also recommend AMPs in that case, depending on the findings. It is the tribunal that will set those administrative monetary penalties. Typically, in most cases, it will end there, because a decision from a tribunal is final. The tribunal has all the powers of a superior court.

It's only if there's some allegation that the tribunal did not act within its mandate that you could seek a judicial review from a court, which, in most cases, will not be the case, because the tribunal will be supported by, as I said before, the administrative tribunals support service. This is an organization that supports tribunals in achieving their mandates and therefore ensures some of the independence and procedural safeguards we've talked about. It's really a closed system.

Really, it will have to go to judicial review in very exceptional cases, where companies think the tribunal has acted outside the powers attributed to it by the legislation.

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

Let's take a look at a group of people, at Cambridge Analytica, for example, where a number of people who do not have the resources would not have the financial wherewithal to challenge the actions of a larger group. Throughout all of this process, what would the person who has been offended have to pay?

[Runa Angus]

Both the Privacy Commissioner and the tribunal don't have formal rules of procedure, so it makes it more accessible and easy. Unless you wanted to engage counsel, you wouldn't have to pay anything to go through that process.

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

Part of the discussion that we're having here now is, “let's not have this tribunal”. After the Privacy Commissioner investigates and sets out a fine or a fee and Meta doesn't agree, what happens if we don't have a tribunal?

[Samir Chhabra]

Thanks for the question.

I think that's a very interesting case in point, because it is something that we've contemplated through our own analysis. Our assessment of that scenario is that the case would then be referred to the Federal Court, then onward to the Court of Appeal and then potentially onward to the Supreme Court, depending on the facts of the case.

Each layer would review the case de novo, which would lengthen the process. What that means is that somebody who was aggrieved or who believed themselves to have suffered a contravention of the act could wait many years for a satisfactory resolution of the case.