March 28, 2012
OPC revises investigative dispositions
The Office of the Privacy Commissioner of Canada (OPC) has revised its investigative findings and other dispositions under the Personal Information Protection and Electronic Documents Act (PIPEDA).
The new findings / dispositions are:
- Well-founded and conditionally resolved
- Well-founded and resolved
This reflects, in particular, a change in the OPC’s approach to identifying a matter as resolved.
To date, our Office has tended to accept an organization’s commitment to remedy non-compliance as sufficient to identify a matter as resolved. However, some organizations have not reported back to us. Putting the onus on the OPC to follow-up and secure proof of compliance is inconsistent with an organization’s responsibility to be independently accountable for their compliance with PIPEDA.
In order to better address this situation, the finding of well-founded and resolved will be changed to well-founded and conditionally resolved for cases where an organization has contravened PIPEDA and has committed to implement the Commissioner’s recommendations and to demonstrate their implementation within a specified time period.
Additionally, we have eliminated the standalone finding of resolved with a view to ensuring an appropriate degree of transparency and accountability. It has been replaced with the finding of well-founded and resolved, which will help to ensure clarity around the fact that a contravention of the legislation occurred. It will be reserved for cases where an organization has demonstrated that it has taken corrective action before a finding is issued.
The OPC has also introduced other revisions to its findings which relate to amendments to PIPEDA which came into force in 2011.
In light of the Privacy Commissioner’s new discretionary powers to decline to investigate a complaint and to discontinue a complaint investigation, the OPC has both revised its discontinued definition and created a new category of declined to investigate.
The decline to report disposition will be eliminated as the Commissioner no longer has this power.
There are no significant changes to the dispositions of not well-founded, well-founded, settled, early resolved and no jurisdiction, although we have slightly modified the wording of all of our dispositions to improve clarity and simplicity.
Dispositions and Definitions*
Dispositions and Definitions
Based on the preliminary information gathered, it was determined that PIPEDA did not apply to the organization or activity that was the subject of the complaint. The Commissioner does not issue a report.
The investigation led to a conclusion that PIPEDA did not apply to the organization or activity that was the subject of the complaint.
|Declined to Investigate *
The Commissioner declined to commence an investigation in respect of a complaint because she was of the view that the complainant ought first to exhaust grievance or review procedures otherwise reasonably available; the complaint could be more appropriately dealt with by means of another procedure provided for under the laws of Canada or of a province; or, the complaint was not filed within a reasonable period after the day on which the subject matter of the complaint arose, as set out in subsection 12(1) of PIPEDA.
*New disposition in effect as of April 1, 2011.
The investigation was discontinued before the allegations were fully investigated. An investigation may be discontinued at the Commissioner’s discretion for the reasons set out in subsection 12.2(1) of PIPEDA, as a result of a request by the complainant, or where the complaint has been abandoned.
*Revised definition in effect as of April 1, 2011.
The investigation ended before a full investigation of all the allegations. A case may be discontinued for any number of reasons. For instance, the complainant may no longer wish to pursue the matter or cannot be located to provide information necessary to making a finding.
|Early resolved The OPC helped negotiate a solution that satisfied all involved parties, without a formal investigation being undertaken. The Commissioner does not issue a report.||Early resolution
This applies to situations where the issue was dealt with before a formal investigation occurred. For example, if an individual filed a complaint about a type of issue that the OPC had already investigated and found to comply with PIPEDA, we would explain this to the individual. “Early resolution” would also describe a situation where an organization, on learning of allegations against it, addressed them immediately to the satisfaction of the complainant and the OPC.
The OPC helped negotiate a solution that satisfied all involved parties during the course of the investigation. The Commissioner does not issue a report.
The OPC helped negotiate a solution that satisfies all involved parties during the course of the investigation. No finding is issued.
The investigation uncovered no or insufficient evidence to conclude that an organization contravened PIPEDA.
|Not well founded
The investigation uncovered no or insufficient evidence to conclude that an organization violated PIPEDA.
The investigation substantiated the allegations but, prior to the conclusion of the investigation, the organization took or committed to take corrective action to remedy the situation, to the satisfaction of the OPC.
|Well-founded and conditionally resolved
The Commissioner determined that an organization contravened a provision of PIPEDA. The organization committed to implementing the recommendations made by the Commissioner and demonstrating their implementation within the timeframe specified.
|Well-founded and resolved
The Commissioner determined that an organization contravened a provision of PIPEDA. The organization demonstrated it had taken satisfactory corrective action to remedy the situation, either proactively or in response to recommendations made by the Commissioner, by the time the finding was issued.
|Well founded and resolved
The Commissioner, being of the view at the conclusion of the investigation that the allegations were likely supported by the evidence, before making a finding made a recommendation to the organization for corrective action to remedy the situation, which the organization took or committed to take.
The Commissioner determined that an organization contravened a provision of PIPEDA.
An organization failed to respect a provision of PIPEDA.
|Eliminated||No report prepared pursuant to subsection 13(2).
Note: This disposition was used only for investigations ended prior to April 1, 2011, when subsection 13(2) of PIPEDA was repealed.
The Commissioner is not required to prepare a report if certain conditions are met: (a) the complainant ought first to exhaust grievance or review procedures otherwise reasonably available; (b) the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under the laws of Canada or the laws of a province; (c) the length of time that has elapsed between the date when the subject-matter of the complaint arose and the date when the complaint was filed is such that a report would not serve a useful purpose; or (d) the complaint is trivial, frivolous or vexatious or is made in bad faith. If she does not prepare a report, the Commissioner informs the complainant and the organization and gives reasons.
*New dispositions took effect January 1, 2012 unless otherwise noted.
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