In Kniss v. The Privacy Commissioner of Canada, the
Federal Court concluded that an investigative decision by the
Office of the Privacy Commissioner of Canada (OPC) should not be
the subject of judicial review because the Personal Information
Protection and Electronic Documents Act (PIPEDA) provides an
adequate alternative remedy.
PIPEDA does not provide the OPC with the power to grant binding
remedies. As the Federal Court reiterated, the OPC has extensive
investigative powers; however, the role of the OPC is ultimately
one that is comparable to an ombudsman.
PIPEDA provides a party who is not satisfied with the
investigative decision by the OPC may apply to the Federal Court
under section 14 of PIPEDA for a remedy, including an award of
damages or a compliance order.
In Kniss, the applicant sought to judicially review two
findings of the OPC rather than proceed by way of the statutory
process under section 14 of PIPEDA. The court concluded that
judicial review as not available for the following reasons:
Parliament elaborated a clear process involving an
investigative component before the OPC and a judicial one before
the Federal Court.
Judicial proceedings were only to be initiated following the
completion of the investigative process before the OPC.
The findings of the OPC were not binding on the parties, unlike
the judicial process.
The OPC must communicate the right of the parties to proceed to
Federal Court following the investigative process, which the Court
concluded signalled an intention that "applicants pursue this
The scope of the recourse under section 14 of PIPEDA and the
powers of the Court to make awards was broader under section 14 of
PIPEDA than under judicial review.
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