Evidence on the Order-Making Model

“I would say that I don't have a firm view on that particular debate, except that I lean heavily towards the order-making power. I would encourage you, in thinking that through, to take the perspective of the individual rights holder here in terms of privacy, and ask which is going to be better for them in terms of which of these models puts more of a burden on the individual to go to court to vindicate their rights rather than have it dealt with in this other process. We have an access to justice crisis here, and putting burdens on individuals to take it up in court when they are supposed to have these robust rights is, I think, unrealistic. […] The only other thing I would say is that in these charter contexts that I'm extremely concerned about, having a strong stick is good, because in these charter contexts, the individual is in a conflicting relationship with the state, whereas in the more administrative context, where the state's administering a social program, there's not that strong conflict.”[1]

Ms. Lisa Austin

“We would like to see order-making power given to the Privacy Commissioner. It was with interest that we noted he now agrees. More information sharing and collection means that more potential harm can come from excesses. There need to be consequences in proportion to the risks, which means that the commissioner needs expanded powers to make sure the fullest protection of the revised law can be brought to bear in a timely and effective manner.”[2]

Ms. Brenda McPhail

“Therefore, I support […] enhanced mechanisms, including order-making powers, to enable the Privacy Commissioner to preserve public confidence. I also support regular review of our privacy laws at least every five years.”[3]

Mr. Thomas Keenan

“My sixth recommendation is for a privacy commission to have order-making power. Now Commissioner Therrien agrees at this point, but enforcement powers and stiffer penalties for privacy invasion would still be needed to help effectively restrict privacy invasions and regulate transborder data flow.”[4]

Mr. Ken Rubin

“the most important powers of a privacy commission are those that are proactive and general or systemic, rather than those that are reactive or individual-based. I would like to see the act reformed in such a way that some of the more proactive powers are included in the legislation. That includes order-making power. The commissioner can only make non-binding recommendations; he cannot compel a public body to take or cease any action without recourse to the courts.”[5]

Mr. Collin Bennett

“I think a distinction has to be made between the tribunal model in Quebec and the commission models in B.C. and Alberta. […] We should also be very careful about generalizing from the provinces to the federal government and translating models that might work in B.C. or Quebec and think they're going to work in Ottawa. However, I do favour order-making for a couple of reasons. I think it focuses the mind better. […] the former commissioner—she would say that knowing you have that power focuses the mind of the organization to mediate. Therefore, the kinds of processes that are engaged in mediation should take place more expeditiously, more seriously. I don't think simply having order-making power necessarily makes it longer. Again, it's apples and oranges, […] The other thing about order-making power is it does establish a clarity of law which you do not necessarily get through an ombudsman process.”[6]

Mr. Collin Bennett

“Most of my thoughts, I must admit, are within the private sector context. […] I think the experience we've had over the last number of years demonstrates that real penalties matter. […] I would also say that we now have enough experience with companies being quite willing to disregard the Privacy Commissioner's views that I think a tougher position is needed. A classic example would involve Bell—it comes up again, I suppose—in the decision involving relevant targeted advertising. […] The commissioner has made a finding, and Bell's initial position is “well, that's nice; that's your view; we disagree”. It's not clear to me, given the import we place and the responsibility we place on the Privacy Commissioner, how companies can adopt that position and basically say, “See you in court, and let's litigate this for a few years before we decide what will take place”. Bell ultimately backed down, but I think the presence of order-making power would have changed that dynamic considerably.”[7]

Mr. Michael Geist

“In terms of the ombudsman versus order-making power versus hybrid, we see that the Privacy Commissioner himself, last month, has come around to the view that order-making power would be preferable. This is the view we have long held and the view we have also put forward in terms of the Information Commissioner. Both of these officers of Parliament should have order-making powers.”[8]

Mr. Vincent Gogolek

“With the order-making model, an advantage is that it would clearly align more closely with international models of data protection. That's what you would see in the Federal Trade Commission and the Federal Communications Commission in the U.S., as well as in the United Kingdom and Mexico. Most European data protection authorities also have that kind of an order-making tribunal model. Clearly we would see much a more timely response to the oversight office once formal investigations are started. In the experience in those provinces that have order-making, there tends to be a more positive response and a more timely response when the commissioner comes calling. Obviously there would be higher levels of compliance in cases where the government institution would otherwise not accept a recommendation from the commissioner, although you've already heard from the Information Commissioner that most recommendations are now accepted without any order-making capacity. With regard to the disadvantages, the process tends to be more formal and more attenuated when you have an administrative tribunal. The strict obligation to ensure procedural fairness typically builds in longer time periods to move a file forward. That could translate to even longer delays than those already encountered, and certainly less flexibility for the commissioner. The process will be less user friendly for your constituents and perhaps more intimidating to individuals who make complaints to the order-making commissioner. It will likely mean dividing staff and creating a separate group of intake officers and mediators, then a separate group of adjudicators or hearing officers, and then installing within the office some kind of a wall between the two groups.”[9]

Mr. Gary Dickson

“There is no question that there is more formality in the [order-making] process. If you take Alberta or British Columbia, they have people in their office who specifically work on mediation. They have other people in the office whose sole responsibility is writing formal orders in those jurisdictions, so you have that kind of division. It brings in some additional complexity. Under the existing Privacy Act, there is a provision that the commissioner creates his own procedural rules. There is a provision that nobody is entitled, as a right, to be able to see what the other party has said. They are not entitled to sit in when other people are being interviewed or examined. I think the Canadian Bar Association's position is that the enhanced ombudsman model provides a significant advantage in terms of flexibility and accessibility.”[10]

Mr. Gary Dickson

“In Alberta and British Columbia, for example, the process is clearly more formal. There are more opportunities for parties to be able to see what the other side is saying and what other parties are submitting by way of argument. That, of course, is part of procedural fairness. What happens in an information commissioner's office or a privacy commissioner's office in the ombudsman model is that there is more flexibility. If an issue comes up in the course of an investigation in Alberta or British Columbia, then it is almost like going back to the start. You have to do a bunch of notifications and so on, and start over. There are additional time periods. With the ombudsman model, if in the course of an investigation another important issue comes up, you provide a more informal notification to the public body. You give them a shorter timeline to provide any additional response. We would see that as being fair, but it is not as rigid a sense of procedural fairness as what you get with an administrative tribunal.”[11]

Mr. Gary Dickson

“My experience with this was back in B.C., and it compared to what's happening in Nova Scotia with the recommendations. […] When matters reached the stage where it went to adjudication, there was a wall between the informal mediation and the adjudication. It was quite formal relative to recommendation-making. Parties tended to be represented by lawyers. They provided witness submissions. There was an exchange of submissions. The hearings generally, though, almost exclusively, were in writing before a single adjudicator, but it required the B.C. office to have a group of adjudicators separate from the rest of the staff who conducted these hearings and issued written reports.”[12]

Ms. Catherine Tully

“From having experience with both order-making and recommendation-making, I can say without hesitation that plain recommendation-making is not a good model. […] Order-making worked really well in B.C. [...] When there's order-making, the informal resolutions go faster, the public body is taken more seriously, there's less foot-dragging, they're more willing to engage and engage quickly, and they have better submissions. When you only get to recommend at the end, there's a degree of inconsistency in terms of who's accepting and who's not, so it's hard to set a good standard across all public bodies, because some are willing to follow the recommendations and some aren't. It definitely needs more. I like the hybrid model for a small jurisdiction. I think that would really work. My office is very small. There are only seven of us. There's no way we're going to have resources to be able to have a separate adjudication unit, whereas the federal offices are large and probably much more capable of absorbing that responsibility.”[13]

Ms. Catherine Tully

“Under order-making power and mediation and consultation, in British Columbia the mandate of the office includes the promotion of access and privacy rights, public education, advice to public bodies and businesses, investigation of complaints, mediation, and independent adjudication. These functions are complementary, and in my opinion, best delivered under one roof […] Combining the investigation and adjudication into one office provides clear benefits to citizens. Combining those provides one-stop shopping for citizens. This clarity and convenience is important. […] We have not found that the public education or the advisory functions of a commissioner pose a risk of undermining the adjudicative function. We do take steps to protect the integrity of the adjudication process. For example, no information about investigative files or attempts at informal resolution are ever disclosed to the adjudicators. […] Adjudication enhances our ability to resolve issues through mediation. The adjudicative function lends greater authority to our investigators by focusing the minds of the parties, and it provides an incentive to both parties to avoid formal adjudication. As a result, we resolve 90% of our complaints and reviews in mediation. […] The fact that we have public education and advisory functions, complemented by investigative powers, with the ultimate ability to order compliance through our adjudicative function, gives us a level of authority that can influence the public and the government.”[14]

Mr. Drew McArthur