Notably, a Privacy Commissioner has been created by virtue of the Privacy Act, hence its purpose is to enforce and administer the act. Since the Commissioner is independent from the government, she is directly responsible and reports to the Parliament. In her capacity as a Commissioner, she is empowered to hear, investigate, audit, and recommend on the complaint submitted before her office. Significantly, under Sec. 12 of the PIDEDA, the function of the Commissioner has been specified. The said provision gives mandate on the Commissioner to conduct an investigation with regard to complaint related to privacy of information.
In carrying out her investigatory function, she may demand the presence of a person to testify and to compel the production of documents necessary in her investigation. Interestingly, the commissioner is allowed to compel the production of the information regardless of its admissibility in the court. Furthermore, the Commissioner is also free to use any method of dispute resolution as long as she sees it necessary and suits the nature of the compliant. Remarkably, the Act has expressly provided that the Commissioner should carry out her functions in the same manner and extent as that with the superior court.
Hence, the Privacy Commissioner has been empowered by the Privacy Act and PIPEDA to act like a court for the purpose of effectively enforcing her mandate. Recently, the long principle that the Privacy Act and PIPEDA has established has been greatly altered by the decision of the Court in this case. In this case, the employment of Annette Soup was dismissed by the Blood Tribe Department of Health. The employee then filed a compliant before the Commissioner on the basis that the documents she was denied access of were used against her.
Subsequently, the Commissioner demanded the production of the documents as mandated by Sec. 12 of PIPEDA. The employer, on the other hand, refused to provide the documents as those were claimed to be protected by the solicitor-client privilege. Eventually, it sought the court for judicial review and held that the Commissioner can compel production of privileged documents. However, the appellate court reversed the decision. The issue that has been settled in the highest court was whether the Privacy Commissioner can compel documents covered by the solicitor-client privilege. In resolving the issue, the court concluded that the Commissioner has no power to compel the privileged documents.
In arriving at such conclusion, the Court reiterated the importance of the privilege in the system. The court also held that documents claimed to be privileged are not among the documents set in Sec. 12 of the Act. Neither can the Commissioner is allowed to view it to determine the truthfulness of the claim. Significantly, the court stressed that the Commissioner is an administrative investigator that has a limited capacity, unlike court that are mandated to adjudicate. Hence, the responsibility of determining the veracity of the reasonableness of the privilege is the role of the court and not of the Commissioner.
Furthermore, the court also considered the presumption that the Commissioner may be partial in her decision, unlike the courts of law. The court also offered options for the Commissioner to apply in determining whether the claim for privilege is true. The first is to file a question on the solicitor-client privilege before a Federal Court. The second is to “bring an application to the same court after reporting an impasse over the privilege. ” The Effect of the Decision to the Role of Privacy Commissioner From the decision, it is clear that the broad investigatory power of the Commissioner has been limited.
More importantly, the Supreme Court took off the statutory power of the Commissioner that is necessary in carrying out her responsibilities. Under the PIPEDA, it is clear that the Commissioner is granted with quasi-judicial function. Such function includes discretion to compel documents and to determine the reasonableness of the claim of privilege. In addition, in several complaint investigated by the Commissioner and as practiced, privileged documents were part of the documents stated in the Act. These were not questioned in court.