I’ve never actually counted, but my suspicion is that most privacy-related litigation arises from Alberta, above all other provinces. By that, I mean litigation that occurs after a Commissioner investigates and issues a report of findings or makes an order.

Federally, of course, the Commissioner does not have order-making powers, and this means that they are not often taken to court for judicial review (a big, notable and important exception to this is the case where Pippa Lawson took the Office of the Privacy Commissioner of Canada to court in the Accusearch matter — I’ll explain more below).

I raise the issue because even some of our smaller provinces have commissioners that have order-making powers, and one of the unintended consequences of this power is that you get challenged more. For cash-strapped Commissioner Karen Rose in P.E.I., this is becoming a problem. You can read more about it in the news article summarized below.

For the office of the federal commissioner, I suspect their budget will need to dramatically increase in terms of the legal fees (or legal staff) they will have to pay once they get their own order-making powers (maybe I should say “if they get their order-making powers”). My suspicion is that the relative litigation-free approach that the ombuds model provides will get turned on its head pretty quickly.

Is that something we want? I see the pros and cons, and would love your thoughts.

Note: The Accusearch case referenced above (and here, from 2010) was very important because it gave the opportunity for the Federal Court to pronounce on the extraterritorial application of PIPEDA. The court ordered the Privacy Commissioner to investigate an organization that had virtually no presence in Canada but was otherwise brokering with the personal information of Canadians. See? It’s not always a bad thing that issues get resolved in court.