INDU debates necessity of privacy tribunal in Bill C-27

During the House of Commons’ industry committee’s ongoing clause-by-clause study of Bill C-27, the Digital Charter Act, Conservative MPs sparked debate on whether the bill’s proposed privacy tribunal is necessary. If the bill passes, it would establish the Personal Information and Data Protection Tribunal, a body that would review recommendations from the privacy commissioner to impose administrative monetary penalties on certain parties found violating the proposed Consumer Privacy and Protection Act. It would have the authority to impose such penalties as well as appeal decisions made by the privacy commissioner. The opposition argued that such a tribunal would slow down and interfere with the abilities and independence of the commissioner. “The tribunal is completely unnecessary and counterproductive,” said Tory MP Ryan Williams, who introduced a motion to remove the tribunal from the bill. “By trying to reinvent the wheel with this tribunal, the result will be delayed justice for Canadians whose fundamental right to privacy has been violated,” he continued. “Justice delayed is justice denied.” Williams said the “equally unnecessary” Competition Tribunal is an example of a quasi-judicial tribunal that delays the resolution of cases. “It’s a body which has never, in its nearly 40-year existence, has never blocked a merger, even ones proven to be anti-competitive by the Competition Bureau,” he noted. The Office of the Privacy Commissioner (OPC) previously noted in submissions made to the committee that the creation of the tribunal “adds one more level of review in the process, resulting in additional delays and costs.” Williams pointed to these arguments to back up his motion. However, Samir Chhabra, the industry department’s director general of the strategy and innovation policy sector, argued otherwise. “The OPC himself suggested that, ‘since the bill provides the authority to issue orders and significant fines, more procedural fairness may be warranted,’” he said, quoting remarks made by commissioner Philippe Dufresne during his testimony in October. Dufresne recommended that decisions made by the tribunal should be reviewable directly by the court of appeal, rather than be taken to a lower court first. Another option would be to give the OPC the authority to issue fines and make those decisions reviewable by the usual court, “as is the case in most regimes.” Bill C-27 would give the OPC decision-making powers, allowing it to compel organizations to make changes in order to comply with the law. Chhabra and his colleague, senior director Runa Angus, argued that these new powers significantly improve the enforceability of privacy law, but appropriately delineating those powers to ensure administrative fairness is paramount. “There are considerations in Canadian law that suggest that it would be appropriate that Canadians expect to see procedural fairness, that they have an expectation that there will not be a single judge, jury and executioner…,” explained Chhabra. “It's difficult to see how the tribunal would be slowing down the order-making abilities of the commissioner,” he said, stating that it will actually increase the speed and efficiency of the current resolution process. Unlike a court, the tribunal does not have to start all over again when reviewing a file, instead it would have to give deference to the facts and findings of the OPC’s investigations. The tribunal's decisions would also be considered final and cannot be appealed to a higher level court. Parties will only be able to seek a judicial review to determine whether the decision of the administrative body is fair and lawful. Without such a tribunal, the OPC “would end up with a situation that is analogous to today,” Chhabra argued. He described the situation as “a more lengthy and drawn out and more challenging process” involving multiple appeals in multiple courts. The matter was still being discussed when the clock ran out. Williams’ motion followed the swift adoption of two motions regarding the bill’s definitions of sensitive information and significant impact. The day’s session opened with unanimous consensus in support of Bloc Québécois MP Jean-Denis Garon’s previously tabled sub-amendment to include mention of an individual’s “reasonable expectation of privacy” when it comes to the various categories of sensitive information proposed in a Conservative amendment to define the term. To address concerns that the proposed definition of sensitive information was too broad, an issue that stalled committee business for three days, MP Rick Perkins adjusted it to clearly state that the term “may” include the various categories listed. He also added geolocation data to the list. Chhabra acknowledged that the change allows the definition to provide “directional guidance” to the OPC while leaving open the possibility for them to identify different forms of information that could be deemed sensitive depending on the context. Another amendment from Perkins was adopted that defines significant impact as an impact that meets "prescribed criteria" established through future regulations. – Reporting by Phalen Tynes-MacDonald at pcreed@thewirereport.ca

INDU debates necessity of privacy tribunal in Bill C-27

News | May 24, 2024

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INDU debates necessity of privacy tribunal in Bill C-27

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