Legislative amendments proclaimed in force last week mean that the Privacy Commissioner of Canada may now be more selective about the complaints her office decides to investigate.
The amendments in question, made to the Personal Information Protection and Electronic Documents Act (PIPEDA), were actually contained in Bill C-28, Canada’s Anti-Spam Legislation, which received Royal Assent last December. Although most of that statute is not yet in force (and, as we noted on our Canadian Communications Law blog, may be delayed in coming into force by the federal election call), last week the Governor in Council proclaimed in force some of the consequential amendments in that bill that affect PIPEDA, leaving for proclamation at a later date those PIPEDA amendments that coordinate with new obligations in the Anti-Spam law itself.
Previously, PIPEDA required the Privacy Commissioner to investigate all complaints submitted to her office, regardless of their nature or seriousness, although she had some discretion in not having to prepare a report in all cases.
With these new amendments, the Commissioner is no longer required in all circumstances to conduct an investigation in respect of a complaint received. Complaints need not be investigated if the complainant has not exhausted other grievance or review procedures that may be available, if the complaint could be more appropriately dealt with under another Federal or Provincial law, or if the complaint was not filed within a reasonable time after subject matter of the complaint arose. In all cases, complainants must be notified that their complaint will not be investigated. The Commissioner retains the right to reconsider a decision not to investigate a particular complaint, if the complainant is able to provide compelling reasons to investigate.
The new powers have long been sought by the Commissioner as a way to better manage the workload of the Office of the Privacy Commissioner, by weeding out complaints whose resolution would be of little public interest or significance, thereby allowing for the focus of resources on issues of a broader systemic nature. The authority to manage the processing of complaints in this way is already afforded to some degree to other tribunals, including the Canadian Human Rights Commission and the Privacy Commissioner for Alberta.
Once the investigation of a compliant commences, the new amendments also give the Privacy Commissioner the power to discontinue investigation in certain circumstances. Investigations may be discontinued where:
- there is insufficient evidence to pursue the complaint
- the complaint is trivial, frivolous or vexatious or is made in bad faith
- the organization that was the subject of the complaint has provided a fair and reasonable response
- the subject matter is already the subject of a report by the Commissioner
- the complainant has not exhausted other grievance or review procedures that may be available
- the complaint could be more appropriately dealt with under another Federal or Provincial law
- the complaint was not filed within a reasonable time after subject matter of the complaint arose
- the matter is being or has already been addressed via another grievance or review process, or pursuant to a procedure under another Canadian law
As with a case of declining to investigate, the Commissioner must notify a complainant and organization of the discontinuance of a complaint, giving reasons for the discontinuance.
With other tribunals that have the power to decline to investigate complaints, there has understandably been a reluctance to exercise this authority, since doing so denies a complainant a full consideration on the merits of the complaint. As a result, the bar for refusing a complaint has tended to have been set fairly high, with complaints being declined or discontinued only in the clearest and most egregious of circumstances. One suspects that this will also be the approach of the Privacy Commissioner; however, the new powers should nevertheless afford her office a great deal more control in managing its caseload, focusing strained resources on matters of the greatest public interest and systemic benefit.