Monday, October 30, 2006

Differing perspectives on the role of the Privacy Commissioner

The most recent Law Times includes an article on different perspectives likely to be presented as PIPEDA is up for its five year review. Included is a brief summary of the suggestions put forward by the Canadian Bar Association:

Law Times: Privacy commissioner needs teeth:

The Canadian Bar Association noted that PIPEDA should follow the tribunal model adopted by the Canadian Human Rights Commission in its recommendations to the Privacy Commissioner last month, elaborating on its formal submission from 2005.

'An impartial, rotating panel should be established with order-making powers and ability to award damages, with a cap on general damages. The Office of the Privacy Commissioner should retain investigative powers and advocacy role. If the commissioner determines that a complaint is 'well founded,' the commissioner should be required to issue a finding within six months and this finding should be referred to the tribunal.

Both complainants and respondents would be able to seek judicial review of a decision of the tribunal,' says the CBA's submission.

Brian Bowman of Pitblado LLP in Winnipeg, chair of the national privacy and access law section of the CBA, told Law Times, 'Currently the privacy commissioner's findings can only be advanced to Federal Court by the complainant or the commissioner with the complainant's consent and there isn't the ability for the organization which, in some cases, has been labelled a privacy infringer by the commissioner . . . to appeal that to the Federal Court.

'The danger is that organizations will be accused of invading privacy by the commissioner but won't be able to take steps to get judicial review to possibly defend themselves.'

Bowman said there has been a lot of debate about the role and powers of the privacy commissioner. "Some would argue that the commissioner has all the power that they need and they simply should use them more fully. We simply took the position that the structure should be changed and a new tribunal should be adopted and that tribunal, however, would have order-making power," he said.

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