Evidence on the Hybrid Model

“It started at the outset with the commissioner complaining about the inordinate delays, of sometimes two, three, and four years, before the information was released—an incredible portion. […] We were the ones who raised, with the commissioner, an order-making model, and we were inclined to go to that model, but the commissioner kept speaking against it and expressing his view that the ombudsman model worked better. He argued that the order-making model would introduce even longer delays than were already being experienced because they would have to do a detailed assessment and write a supporting decision that would stand up to legal scrutiny on appeal of any such order. He believed it would introduce even longer delays because of the hearing processes, and so on […] As a result of the discussions, it started to come to light what was driving some of the inherent delays, and the commissioner came around and said, “Well, we could live with an order-making model. It may work all right, but we think the ombudsman model is best for Newfoundland and Labrador.” When we then did the detailed assessment of what was driving it—and all that information is in the report—it was clear that the commissioner's office was the cause of 90% of the delay. The procedures and the approach being taken weren't greatly different from what they were in most other provinces […] We worked on a system that would speed it up, and the hybrid model is what we produced. […] [W]e had very strict time limits placed on the time frame. When the recommendation of the commissioner is made, if it's unacceptable to the public body, the public body has two choices: follow the recommendation and release it if it requires release, or apply to the court right away, within 10 days, for an order that you would not be required to release it. As a result, the burden shifts to the public body, not to the requester to provide it. That's effectively making it an order, but it doesn't place the commissioner in the position where he or his office feels they have to go through these processes of hearings and to write this learned, extensive “court of appeal” type of judgment on the issue that takes all of this time, and then have the appeal of it go to a court, which hears the issue de novo, all over again.”[1]

Mr. Clyde Wells

“If you have a hybrid model where 700 recommendations are involved, why do you need an order model because 70,000 recommendations are involved? Why would there be a difference merely because of numbers? You'd still have perhaps an even greater burden in the order-making model with 70,000 requests than you would with an order-making model with 700 requests. I would think the burden would be greater to use an order-making model than the hybrid model. That's my guess. The commissioner would know better than I.”[2]

Mr. Clyde Wells

“I have trouble understanding why the commissioner has done an about-face and is now requesting order-making powers rather than the hybrid model. Like him, I will refer to the La Forest judgment. Justice La Forest warned us that such a change would be costly, that it could further delay the investigation process and, worse still, that it could lead to closed-door hearings. I will now quote Justice La Forest's statements that are included in the Privacy Commissioner's letter.

• There is a danger that a quasi-judicial, order making-model could become too formalized, resulting in a process that is nearly as expensive and time-consuming as court proceedings. It is also arguable that the absence of an order-making power allows the conventional ombudsman to adopt a stronger posture in relation to government than a quasi-judicial decision-maker. There is also some virtue in having contentious access and privacy issues settled by the courts, where proceedings are generally open to the public.”[3]

Mr. Michel Drapeau

“The CBA completely agrees with the commissioner that the current model of pure ombudsman requires reform. […] The alternative we suggest would be the newer model that's been created and then implemented in Newfoundland and Labrador's June 2015 amendments to their access and privacy law. […] The chief advantage of the enhanced ombudsman model is a less formal, more flexible process that we think will be more user-friendly for your constituents. Allowing the commissioner to hold government institutions to account and order them to provide relevant documents and responses within deadlines, which don't currently exist for the privacy commissioner under the Privacy Act, will go a long way towards expediting and accelerating the process. I remind you that this process is often prolonged and arduous, the key being how to get co-operation from government institutions in providing the documents and information you need. We think improved efficiency should flow from the new powers suggested to better control the process of an investigation. On the substantive issue of whether there has been a breach, the enhanced ombudsman model shifts the onus to government institutions. This is something we think highly appropriate. If a government institution is dissatisfied with a decision of the commissioner, it's up to the government institution to go to court to obtain a final determination. Finally, as we see it, it would be easier for the privacy commissioner's office to transition to the enhanced ombudsman model than to an order-making model. When I recently spoke with Newfoundland and Labrador's information and privacy commissioner's office, one of the senior officials commented that the new system, only a year old, was working in an excellent fashion. He thought it had been very successful. The disadvantage is that we only have about a year of experience here. Newfoundland embarked on this new process in June of 2015, so it's a limited time. We understand, though, that the system appears to be working well at present.”[4]

Mr. Gary Dickson

“I think my response would be this. If you take the approach the CBA does—that Canadians have quasi-constitutional rights to have their privacy protected and to have access to government records and government information—then the focus needs to be on accessibility, and accessibility usually translates into a simpler process rather than a more complex one. When we look at the kinds of complaints that come from different jurisdictions, it's often about delay. It is not so much that decisions of commissioners aren't respected—most times they are complied with, and that's true right across the board, as well as federally—but the issue tends to be one of delay. I think the proposal the Newfoundland committee came up with, which is embedded in the Newfoundland legislation, points a way to an expedited process that can reduce the delay by ensuring a more informal process.”[5]

Mr. Gary Dickson

“I think the Canadian Bar Association's position is that the enhanced ombudsman model provides a significant advantage in terms of flexibility and accessibility.”[6]

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.”[7]

Mr. Gary Dickson

“I think there are certainly strengths with the order-making model and I've worked in those jurisdictions that have it, but in terms of providing the highest measure of service to Canadians and the most successful kind of service, I think the enhanced ombudsman model best fits the bill. Beyond that, the other process is ensuring that the commissioner has a broader range of powers. Parliament has provided the commissioner with diverse powers in PIPEDA, which are appropriate, and we see them being used frequently. The Privacy Commissioner needs a similar arsenal of remedies, tools, and resources when he's dealing with matters under the federal Privacy Act.[8]

Mr. Gary Dickson

“Then ultimately, there's making it effective. I'm not a fan of order-making powers. I think the ombuds model works, but I have come around to see the wisdom of the Newfoundland hybrid model, where if a government department is not going to follow a recommendation with respect to any obligation under the Privacy Act—collection, use, disclosure, or other safeguards—the department should have to stand up in front of a court and justify it and explain why it doesn't have to. In effect, that puts the onus on the government department, and we would end up with a body of case law that would be more clear.”[9]

Mr. David Fraser

“Not having any teeth in the legislation I think is ultimately problematic. Forcing the individual concerned to be the one who goes to court and has the onus of proving to the judge that somehow their rights have been infringed I think places too much of a burden on the individual. Also, when you simply look at the economics between the two—the government and an individual—that's a pretty daunting prospect for an individual. There is probably greater opportunity when the commissioner doesn't have the ability to compel the person to do something, but does have a lot of authority in terms of the ability to sit down and discuss it. […] It's a much less confrontational approach. The commissioner would have the ability to work with the public body in order to exercise moral suasion to convince them that “this is it and that ultimately this is the recommendation”. Then, if the government institution decides that they're not going to follow that recommendation, they should be the ones to stand up in front of a judge and say that they're not legally required to do this. You can clearly have a difference of opinion. To me, it's as much not wanting to change the character of the interaction between the office and the individual, or the office and the institution, and wanting to make sure that the onus is properly on the right party, and also that the burden ultimately is on the right party. […] If the commissioner has an education mandate and an advocacy mandate and all these other sorts of things, you don't want to turn the commissioner into essentially a tribunal as well. You want to separate that as well.”[10]

Mr. David Fraser

“that's not to say that we're opposed to order-making power. To me, it comes down, first of all, to whether order-making power is necessary to compel compliance with the recommendations that are being issued and, second of all, to whether it would make the OPC more effective in its oversight role. Would it create a greater impetus for organizations to follow their recommendations? Would it turn it into a stronger body, or would it further delay the process by making companies more defensive through the investigations? I don't know the answer to that question, but I think it's important to think about the issue in those terms.

It's also worth considering in the context of the statement by the OPC that most institutions do eventually agree to their recommendations, though there can be lengthy delays. Against that backdrop, obviously the delays are a legitimate concern, but if that's the major issue, I'm not entirely certain how order-making power would solve it more effectively than the hybrid model that had been previously suggested.”[11]

Mr. Michael Karanicolas

“The model we have, whereby we make a recommendation that can become an order if it's not appealed to the court within 10 days, is very effective. It places the burden on the public body. It also allows us to participate in the court hearing, which is invaluable, because we get to give our own objective perspective in court. Sometimes in the case of a person who doesn't have the resources to have their own counsel, that is really the only substantive quality argument the court hears, other than the arguments that are filed on behalf of the public body.”[12]

Mr. Donovan Molloy

“A pure recommendation model is completely ineffectual. From our point of view, the fact that a recommendation can become an order in 10 days motivates the public bodies and other authorities to co-operate and to get these things concluded, because if it goes to a formal report and they're not prepared to follow the recommendation, they have to go to court and they have to justify why they didn't. I think the hybrid model is fairly powerful as well.”[13]

Mr. Donovan Molloy

“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.”[14]

Ms. Catherine Tully