Declined to investigate and discontinued complaint dispositions

In April 2011, amendments to PIPEDA came into effect which gave the Commissioner enhanced discretion regarding the conduct of investigations.

The Commissioner now has explicit powers to decline to investigate complaints and discontinue investigations in certain defined circumstances, such as where the complaint could be more appropriately dealt with through procedures under other laws or where the complaint was not filed within a reasonable period of time.

Under subsection 12(1) of PIPEDA, the Commissioner may decline to investigate a complaint when he is of the opinion that:

• the complainant ought to exhaust other reasonably available grievance or review procedures;
• the complaint could be dealt with more appropriately (either initially or completely) by a procedure provided for under other federal or provincial laws; or
• the complaint was not filed within a reasonable period of time.

Under subsection 12.2(1) of PIPEDA, the Commissioner may discontinue an investigation if he is of the opinion that:

• there is insufficient evidence to pursue the investigation;
• the complaint is trivial, frivolous or vexatious or made in bad faith;
• the organization has provided a fair and reasonable response to the complaint;
• the matter is already the object of an ongoing investigation;
• the matter has already been the subject of a report by the Commissioner; or
• any of the circumstances described in subsection 12(1) of PIPEDA (the decline powers) apply.

The Commissioner must provide notice to the parties indicating that the OPC has declined to investigate or has discontinued an investigation. The Commissioner has the discretion to reconsider a decision to decline where there are compelling reasons.

On that front, we have established internal procedures to help ensure these powers are applied fairly and appropriately.

• The assessment of whether to decline an investigation is based on the information provided by the complainant, as well as the information gathered by investigators and intake officers through follow-up calls or correspondence with the prospective complainant and respondent. The rationale for declining is based on these facts and considered on a case-by-case basis.
• The criteria being applied is designed to evaluate each case on its own merits. For instance, we do not interpret “a reasonable period of time” to file a complaint as a fixed, one-size-fits-all number. Rather, we consider factors such as when the complainant was made aware of the perceived problem, which actions the complainant has already taken to pursue the matter before contacting this Office, the reasons for the delay and the prejudice to the respondent caused by the delay.

This discretion to decline to investigate complaints and discontinue investigations helps concentrate resources appropriately and also helps balance service to all Canadians with the concerns of individual complainants.