In Kniss v. The Privacy Commissioner of Canada, the Federal Court concluded that an investigative decision by the Office of the Privacy Commissioner of Canada (OPC) should not be the subject of judicial review because the Personal Information Protection and Electronic Documents Act (PIPEDA) provides an adequate alternative remedy.
PIPEDA does not provide the OPC with the power to grant binding remedies. As the Federal Court reiterated, the OPC has extensive investigative powers; however, the role of the OPC is ultimately one that is comparable to an ombudsman.
PIPEDA provides a party who is not satisfied with the investigative decision by the OPC may apply to the Federal Court under section 14 of PIPEDA for a remedy, including an award of damages or a compliance order.
In Kniss, the applicant sought to judicially review two findings of the OPC rather than proceed by way of the statutory process under section 14 of PIPEDA. The court concluded that judicial review as not available for the following reasons:
- Parliament elaborated a clear process involving an investigative component before the OPC and a judicial one before the Federal Court.
- Judicial proceedings were only to be initiated following the completion of the investigative process before the OPC.
- The findings of the OPC were not binding on the parties, unlike the judicial process.
- The OPC must communicate the right of the parties to proceed to Federal Court following the investigative process, which the Court concluded signalled an intention that “applicants pursue this recourse first”.
- The scope of the recourse under section 14 of PIPEDA and the powers of the Court to make awards was broader under section 14 of PIPEDA than under judicial review.