Mathew Englander, who endured the PIPEDA process from a formal complaint to the Federal Court of Appeal, has written an interesting piece for the Ontario Bar Associaton's Eye On Privacy. Mathew always has interesting things to say on the topic and offers a very unique perspective on these issues. He is the only complainant under the Act who has written and spoken about the experience from that perspective. He initiated a complaint and had to deal with carrying the case on his own to the courts. He lost at the Commissioner stage, and at the Federal Court stage. He originally had tens of thousands of dollars of costs levied against him until he finally won at the Federal Court of Appeal.
In his article, he calls for the creation of a specific tribunal to deal with complaints. In the alternative, he calls for changes to the remedies available under the Act:
Remedying PIPEDA: Two Proposals for More Effective and Accessible Privacy Mathew Englander, LL.B.
... First, there should be a procedure whereby a complaint to the Commissioner results in a legally-binding resolution, if the organization agrees to it. For example, the legislation could provide that after the Commissioner issues recommendations, the organization must respond within a set period of time, either accepting or rejecting the recommendations. If the organization rejects the recommendations, then the complainant or the Commissioner can proceed by filing an application in Federal Court. The Commissioner may also choose to publicize the names of organizations that reject the Commissioner’s recommendations on the basis that they have not only contravened the Act, but now expressly refuse to correct their practices. On the other hand, if the organization accepts the recommendations, it would then become legally bound to implement them. The organization could be subject to a fine if it then failed to do so.13 This proposed amendment would not change the ombudsman role of the Commissioner, because it is entirely the organization’s choice whether to accept or reject her recommendations.
Second, Parliament should clarify that the Privacy Commissioner’s report can include a recommendation as to the amount of damages that an organization should pay to the individual as compensation for an infringement of the individual’s PIPEDA rights. At present, the Commissioner’s Office does not make damage recommendations, which would be a useful negotiation point for both individuals and organizations.
Third, the Commissioner should be required to conclude investigations within eight months, not one year.14 Individuals who complain about a breach of their privacy rights do not want a long, drawn-out ordeal. This may require additional funding of the Commissioner’s office to reduce complaint backlogs.
Fourth, complainants should have the option of bringing a complaint directly to the Federal Court. Bypassing the Commissioner would make sense in situations where the complainant believes that it would be an unnecessary delay. In addition, if it emerges in the course of a Commissioner’s investigation that there are other individuals whose rights were breached in the same manner as the complainant, then those other individuals should have the option of bringing the matter to court directly, either individually or as a class proceeding. Under the present system, filing a complaint with the Commissioner would merely delay an anticipated day in court.
Fifth, at the complainant’s option, proceedings under PIPEDA in the Federal Court should be identified by docket number only, not the complainant’s name. The court file in PIPEDA proceedings should be automatically sealed (with only the parties having access), and all hearings should be in camera unless the complainant consents otherwise. Such provisions are necessary because otherwise, the court proceedings themselves could constitute a further violation of the complainant’s privacy.
Sixth, the proceeding in the Federal Court should encourage viva voce evidence, because drafting effective affidavit evidence is difficult for unrepresented lay litigants. Parliament should amend PIPEDA to provide that at the hearing of an application under s. 14, all parties shall be invited to give viva voce evidence.
Seventh, the legislation should provide that costs on a PIPEDA application will not be awarded against an individual unless the individual proceeded on an unreasonable basis.