Provisions in the Fighting Internet and Wireless Spam Act (FISA) that amend the Personal Information Protection and Electronic Documents Act (PIPEDA) came into force on April 1, 2011. The amendments provide the Privacy Commissioner with greater discretion in carrying out her investigative duties under PIPEDA, and increase her ability to share both information and evidence with international and provincial privacy offices.
The amendments have removed the obligation placed on the Commissioner to conduct an investigation in respect of every complaint that is submitted to her office. Instead, the Commission now has the discretionary ability not to conduct an investigation where she is of the opinion that:
- the complainant should first exhaust another available grievance or review process;
- the complaint could be more reasonably dealt with under another federal or provincial law; or
- the complaint was not filed within a reasonable period of time after it arose.
After having decided to undertake an investigation, the Commissioner is empowered to discontinue it should she find:
- there is insufficient evidence to proceed;
- the complaint is trivial, frivolous or vexatious;
- the organization the complaint is in respect of has already provided a reasonable response; or if
- the matter is already the subject of an investigation or report by the Commissioner, or if it has been dealt with under another law or grievance process.
Prior to these amendments, the Commissioner exercised such discretionary powers only in deciding not to issue a report, after having conducted a full investigation of a complaint. Complainants who are notified that their complaint has been discontinued are permitted to apply to the Federal Court in respect of its subject matter within 45 days of notification.
In addition to these amendments, the Commissioner’s ability to consult with her provincial counterparts has been broadened by a provision that permits the Commissioner to share information relevant to an investigation under PIPEDA or provincial legislation with similar objectives, or that could assist the Commissioner or her provincial counterpart in the exercise of their functions. This ability is subject to the prior development of “procedures” to permit such sharing of information.