Previously, PIPEDA required the Privacy Commissioner to
investigate all complaints submitted to her office, regardless of
their nature or seriousness, although she had some discretion in
not having to prepare a report in all cases.
With these new amendments, the Commissioner is no longer required
in all circumstances to conduct an investigation in respect of a
complaint received. Complaints need not be investigated if the
complainant has not exhausted other grievance or review procedures
that may be available, if the complaint could be more appropriately
dealt with under another Federal or Provincial law, or if the
complaint was not filed within a reasonable time after subject
matter of the complaint arose.
In all cases, complainants must be notified that their complaint
will not be investigated. The Commissioner retains the right to
reconsider a decision not to investigate a particular complaint, if
the complainant is able to provide compelling reasons to
The new powers have long been sought by the
Commissioner as a way to better manage the workload of the Office
of the Privacy Commissioner, by weeding out complaints whose
resolution would be of little public interest or significance,
thereby allowing for the focus of resources on issues of a broader
systemic nature. The authority to manage the processing of
complaints in this way is already afforded to some degree to other
tribunals, including the Canadian Human Rights
Commission and the Privacy Commissioner for
Once the investigation of a compliant commences, the new amendments
also give the Privacy Commissioner the power to discontinue
investigation in certain circumstances. Investigations may be
there is insufficient evidence to pursue the complaint
the complaint is trivial, frivolous or vexatious or is made in
the organization that was the subject of the complaint has
provided a fair and reasonable response
the subject matter is already the subject of a report by the
the complainant has not exhausted other grievance or review
procedures that may be available
the complaint could be more appropriately dealt with under
another Federal or Provincial law
the complaint was not filed within a reasonable time after
subject matter of the complaint arose
the matter is being or has already been addressed via another
grievance or review process, or pursuant to a procedure under
another Canadian law
As with a case of declining to investigate, the Commissioner
must notify a complainant and organization of the discontinuance of
a complaint, giving reasons for the discontinuance.
With other tribunals that have the power to decline to investigate
complaints, there has understandably been a reluctance to exercise
this authority, since doing so denies a complainant a full
consideration on the merits of the complaint. As a result, the bar
for refusing a complaint has tended to have been set fairly high,
with complaints being declined or discontinued only in the clearest
and most egregious of circumstances.
One suspects that this will also be the approach of the Privacy
Commissioner; however, the new powers should nevertheless afford
her office a great deal more control in managing its caseload,
focusing strained resources on matters of the greatest public
interest and systemic benefit.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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