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Overview of Litigation Work

Facebook

Google Reference and Delisting Complaints

Overview of Litigation Work

Lead Directorate: Legal Services Directorate

Background

  • The OPC participates in various litigation matters, usually before the federal courts, as a party, intervener or tribunal whose decision is under review.
  • The types of litigation in which the OPC may be involved include:
    • Applications under the PIPEDA or the Privacy Act, either as an applicant, on behalf of a complainant or as an added party;
    • Judicial review proceedings challenging an OPC investigation or other action or decision, either as a respondent, intervener and/or as the tribunal responsible for producing the certified tribunal record;
    • References made by the OPC to the Federal Court in the course of an investigation or other proceedings; and
    • As an intervener in litigation raising important privacy issues and/or affecting the OPC’s mandate.

Current status

  • In addition to two high-profile litigation matters that are ongoing, there are a number of smaller matters in which the OPC is involved. Ongoing litigation in which the OPC is involved, in addition to the Facebook and Google matters include:
    • AB v. Canada (Attorney General of Canada) – Federal Court – Judicial review of a Privacy Act report of findings. The application has not yet been accepted for filing but a hearing on preliminary procedural matters is scheduled for August 9, 2022. The OPC is not named but will likely be required to produce its certified tribunal record if the application proceeds.
    • Joseph v. Canada (Attorney General of Canada) – T-1797-21 – Federal Court – Judicial review of an OPC investigation and report into a Privacy Act complaint. OPC is not a party but has been ordered to produce its certified tribunal record. OPC’s motion for confidentiality over its tribunal record was denied.
    • Tamara James v. Privacy Commissioner of Canada - T-1103-22 – Federal Court - This appears to be an application for judicial review of a decision to discontinue a PIPEDA complaint. We are taking the position that the OPC is improperly named as the Respondent and are in the early stages of sorting out this procedural step with the parties and the Court. The OPC will likely have to produce a certified tribunal record.
    • Cain v. Canada (Minister of Health) – T-645-20, T-641-20, T-637-20 – Federal Court – Applications under the Access to Information Act for access to the first three digits of the postal codes of registered users of medical cannabis. OPC intervened, a hearing has been held, and the Court’s decision is pending.
    • Phillips v. Capital One et. al. – A-150-21 – Federal Court of Appeal – Appeal of a Federal Court decision upholding the OPC’s objection to produce its certified tribunal record in the context of a section 14 application under PIPEDA. Awaiting a hearing date to be set.
    • Doyle v. Canada (National Energy Board and Attorney General of Canada - T-736-19 – Federal Court - Application seeking disclosure of records from the National Energy Board. The applicant did not name the Privacy Commissioner in their Notice of Application, but has brought a motion to add the Privacy Commissioner as a respondent. The OPC has objected. The Court’s decision on the motion is pending.
    • Canadian Civil Liberties Union v. Canada (Attorney General of Canada) - CV-14-504139 – Ontario Superior Court of Justice – Constitutional challenge to ss. 9(2.1) - (2.4) of PIPEDA that prevent the disclosure of information, in response to an access request, relating to whether an individual’s personal information was disclosed to a government institution for law enforcement or national security purposes. The OPC is intervening regarding its role in relation to the impugned provisions. Affidavits have been exchanged.
  • In addition, the OPC is closely monitoring various litigation proceedings that have resulted from its investigation, along with provincial counterparts, into the activities of Clearview AI. At present, Clearview AI has brought three judicial review applications regarding orders made by our counterparts in British Columbia, Alberta and Quebec. An applicant is also seeking certification of a class proceeding under section 14 of PIPEDA against Clearview AI. A hearing in the class action is expected in the third or fourth quarter of Fiscal Year 2022-2023.

Next steps

  • Legal services will seek further instructions from the Commissioner on litigation files as appropriate.

Further reading

Facebook

Lead Directorate: Legal Services Directorate

Background

  • On April 25, 2019, the OPC released its report of findings (RF) from its investigation into Facebook’s compliance with PIPEDA, in relation to the “This is Your Digital Life” (“TYDL App”) and Cambridge Analytica, a UK political consulting firm (Joint investigation of Facebook, Inc. by the Privacy Commissioner of Canada and the Information and Privacy Commissioner of British Columbia).
  • The joint investigation by the OPC and Office of the Information and Privacy Commissioner for British Columbia (OIPC BC) found that Facebook contravened the fair information principles relating to consent, safeguards, and accountability contained in Schedule 1 of PIPEDA. The OPC also found that, with respect to users’ downloads of the TYDL App after June 18, 2015, Facebook failed to obtain meaningful consent per section 6.1 of PIPEDA. Facebook disputed the findings of the investigation and refused to implement the OPC’s recommendations.
  • Facebook T-190-20 (Facebook 1): On February 6, 2020 the OPC filed a Notice of Application with the Federal Court against Facebook, Inc. The application was brought under paragraph 15(a) of PIPEDA for an order following the issuance of a RF. The OPC is seeking a declaration that FB contravened PIPEDA, and various other remedies, under s. 16 of PIPEDA.
  • In March 2020, the OPC served Facebook with its affidavit evidence in support of its section 15 application. In 2021, Facebook brought a motion to strike portions of the affidavit but was largely unsuccessful. In February 2022, the parties completed cross examination of witnesses on affidavits filed in both this proceeding and in Facebook 2.
  • Facebook T-473-20 (Facebook 2): In April 2020, Facebook filed an application for judicial review of the OPC’s RF under section 18.1 of the Federal Courts Act. Facebook is challenging the OPC’s decision to investigate and continue to investigate the complaint, the investigation process, and seeks to quash the resulting RF.
  • In 2021, the OPC brought a motion to strike Facebook’s application for judicial review on the basis that Facebook was out of time to bring it, and has an adequate alternative remedy (AAR) in its legal right to respond in the section 15 application. The Court dismissed the OPC’s motion, finding that the issue of Facebook having an AAR was at least debatable, but noting that Facebook did not provide a justification for its delay in filing for judicial review, a potentially fatal defect, in addition to the existence of an AAR. In the fall of 2021, the OPC transmitted an extensive Certified Tribunal Record to Facebook and the Court, and served its Affidavit in January 2022.

Current status

  • Facebook 1: OPC brought a motion seeking to file additional evidence in the section 15 proceeding and a refusals motion; a hearing was held May 30, 2022 and was adjourned to June 10, 2022. Once the Court rules on the motion, the OPC may have just 14 days to file its Respondent’s Record in the PIPEDA application. A hearing date(s) has not yet been set.
  • Facebook 2: On April 11, 2022 Facebook filed its Application Record in the judicial review proceedings, with the Court. The OPC filed its Respondent’s Record on April 28, 2022. While a requisition has been filed, a hearing date(s) has not yet been set. The OPC asked at the outset of the litigation that both matters be heard consecutively by the same judge at one hearing; the judicial review first, followed by the s. 15.

Strategic considerations

  • Facebook 1 is a legal test case for what constitutes “reasonable effort” by organizations to obtain meaningful consent under PIPEDA and the obligations of organizations under PIPEDA for the privacy practices of third parties that operate on their platforms. The case will also challenge Facebook’s position that it is an intermediary between users and third parties that merely facilitates user preferences.
  • The outcome of Facebook 2 may have broader legal and operational implications for the OPC’s investigations, particularly regarding jurisdiction, procedural fairness and timelines under PIPEDA.
  • The Court’s conclusions on each of these above issues may influence and inform the government’s approach to private sector privacy law reform.
  • [Redacted]

Next steps

  • Legal will keep the Commissioner apprised of any developments.

Further reading

Google Reference and Delisting Complaints

Lead Directorate: Legal Services Directorate

Background

  • The Google Reference (Federal Court of Appeal file: A-250-21) concerns whether Google’s search engine falls within scope of the PIPEDA when it indexes webpages and returns search results in response to searches of an individual’s name.
  • In 2018, the OPC referred two questions to the Federal Court relating to whether Google’s search engine is subject to PIPEDA when it indexes web pages and presents search results in response to queries of a person’s name.
  • This reference arose in the context of a complaint in which an individual (the Complainant) alleged that Google is contravening PIPEDA by prominently displaying links to news articles about them when their name is searched, alleging the articles are outdated, inaccurate and disclose sensitive information.
  • The Federal Court issued its decision in July 2021. The Court found that PIPEDA applies to Google’s search engine service. In particular, that:

Current status

  • Google has appealed the Federal Court’s decision to the Federal Court of Appeal and is arguing the reference should be struck or the Court should find that Google is exempt from PIPEDA because of the journalistic exemption in the Act.
  • Google’s position is supported by a coalition of media organizations that is intervening in the appeal.
  • The OPC, the Complainant, the Attorney General of Canada and the intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), are arguing that the Federal Court correctly decided the reference.

Strategic considerations

  • In 2018, the OPC published a Draft Position Paper on Online Reputation as part of an ongoing consultation on how privacy law could address harms to individuals resulting from the increased exposure of personal information online. In it, the OPC states its belief that PIPEDA applies to search engines and could allow for delisting of search results in certain circumstances. The Paper remains in draft format and will not be finalized until the conclusion of the reference proceeding and related investigation.
  • The Federal Court’s decision did not determine whether PIPEDA requires delisting of the articles in question or more generally. That issue remains to be determined in the underlying investigation, which is ongoing.
  • [Redacted]

Next steps

  • All written submissions in the appeal have now been filed. The remaining step in this proceeding is for the Federal Court of Appeal to set a hearing date, likely in the third or fourth quarter of Fiscal Year 2022-2023.

Further reading

  • A-250-21 Factum of the Privacy Commissioner of Canada, March 17, 2022.

Table of Contents

Overview of Litigation Work

Facebook

Google Reference and Delisting Complaints

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