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Canada Dashboard Digest | Notes from the IAPP Canada Managing Director, Oct. 5, 2018 Related reading: Australia and Chinese Taipei join APEC's Cross-Border Privacy Rules System

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One thing that we cover in the CIPP/C training is the investigatory powers of the federal privacy commissioner. In particular, we discuss the problems that arise when an organization claims that evidence relevant to the investigation is covered by solicitor-client privilege. Indeed, the issue has been litigated in the past and we often refer to the Blood Tribe and Air Canada cases as the first ones that really made it difficult for the OPC to pierce the veil and evaluate claims of privilege.

The net result of those two cases was a regime where the OPC would be forced to begin an application in federal court if they doubted the legitimacy of the privilege claim. While cumbersome, at least it provided a way of supervising what otherwise could turn into an easy way of hiding away from the OPC: just claim privilege over everything.

Well, as it turns out, it seems that one organization is taking a rather bold interpretation of the privilege claim and is denying access to complainants trying to obtain their own personal information. It is an airline called Jet Airways and the OPC refers to this matter in its recently issued Annual Report, although this one didn’t get any attention last week.

What strikes me is that the OPC seems, at least on the surface, to be leaving it at that. They say they are frustrated with the broad claims of privilege but don’t seem willing to bring the matter to court — at least at this stage. There’s language in their report of findings about considering their options. 

If they don’t bring the matter to court, are they not sending a message that an easy way to shield against investigations is by claiming privilege?

While I realize taking the airline to court is not without cost or effort, it is still an important enforcement tool the commissioner has. The rest of the annual report has a general theme of needing greater enforcement powers, but it isn’t clear why they don’t seem to be using the existing ones for this. Or maybe they are and they just haven’t told us yet!

Either way, with such forceful language about powers last week, the government will surely be examining the effectiveness and use of the existing ones to date rather closely. 

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