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![]() Applications for Court Hearings Under PIPEDA1. IntroductionThis document is intended to provide helpful information to guide complainants through the process of applying to the Federal Court for a hearing under section 14 of the Personal Information Protection and Electronic Documents Act (PIPEDA).1For more information and for sample documents, please refer to the Federal Courts Rules, which can be found on the Department of Justice Canada website at http://laws.justice.gc.ca/en/F-7/SOR-98-106/index.html. 2. What is a section 14 application?A section 14 application is a request for a hearing in Federal Court regarding a matter about which a complaint was made to the Privacy Commissioner of Canada about how an organization handles personal information. The complainant may make this application only after the Commissioner has investigated the matter and issues her final report. a. What are the issues involved?A section 14 application is made in relation to the matter originally complained about, or referred to in the report the Commissioner issued after her investigation into the matter. Specifically, section 14 states that the matter complained of must relate to one of the following sections of PIPEDA or principles under Schedule 1: PIPEDA
Schedule 1
b. What is the purpose of a section 14 application?The purpose of a section 14 application is to ask the Court to examine the conduct of the organization against which the original complaint was made; it is not to review the report that was prepared by the Privacy Commissioner. c. What evidence must be brought forward?The Federal Court takes a fresh look at the evidence produced by both parties. The applicant will be required to submit detailed evidence by way of affidavit. The applicant bears the ultimate burden of demonstrating that the organization violated its obligations under PIPEDA. 3. Why would I want to file an application under section 14 of PIPEDA?Because the recommendations in the Privacy Commissioner’s report are not legally binding, applicants may bring a section 14 application to have those recommendations enforced by a Court. The applicant may also ask the Court to make other orders against the respondent organization. For more information on the remedies available, see Question 4. In cases where the Privacy Commissioner finds the complaint not well-founded, the applicant may disagree with that finding and ask the Court to issue a ruling to the contrary. 4. What can the Federal Court order in the context of a section 14 application?Section 16 of PIPEDA provides the Court with the authority to award remedies to the complainant. In addition to any other remedies the Court may award, the Court is specifically empowered to:
5. Do I need to have a lawyer to bring an application to the Federal Court?You do not need to have a lawyer to commence and proceed with a section 14 application in Federal Court. Although the experience and expertise of legal counsel may assist you in this process, you may choose to represent yourself. 6. Who can file an application with the Federal Court?Under PIPEDA, it is the individual complainant who may f ile a section 14 application in Federal Court, not the respondent organization. 7. What is the role of the Privacy Commissioner in this process?Under section 15 of PIPEDA, the Privacy Commissioner can appear at a section 14 hearing on behalf of a complainant or, with the Court’s permission, can appear as a party to the proceedings. Even if the complainant chooses not to proceed with a section 14 application, the Privacy Commissioner can herself apply to the Federal Court for a hearing of the matter under section 15(a), in well-founded cases where the report is complete and the offending organization has refused to implement her recommended changes. In such cases, the Privacy Commissioner’s Office will contact the complainant in order to obtain his or her consent prior to applying for a court hearing. 8. When can a section 14 application be filed?A complainant may only file a section 14 application after they have received a report from the Privacy Commissioner. Not every complaint made will lead to the Privacy Commissioner issuing a report. Subsection 13(2) of PIPEDA states that a report is not required where:
Also, the Privacy Commissioner will not issue a report in cases where she lacks the jurisdiction to take the complaint. If the Privacy Commissioner decides not to issue a report, she will inform both the complainant and the respondent organization and provide her reasons for this decision. If no report is issued, the complainant is not entitled to bring a section 14 application under PIPEDA. 9. Who is the respondent (i.e. the other side) in a section 14 application?The Federal Court has explained that what is at issue in a section 14 application “is not the Commissioner’s report, but the conduct of the party against whom the complaint is filed.”2 Therefore, the respondent in a section 14 application is the organization in relation to which the applicant brought the original complaint to the Privacy Commissioner. 10. Are there time limits on when I can file my application?Subsection 14(2) of PIPEDA requires that the applicant bring the application within 45 days following the release of the Privacy Commissioner’s report, or within any further time allowed by the Court. 11. What happens if I miss the deadline?There are instances in which the time limit for the section 14 application can be extended. However, this decision does not lie with the Office of the Privacy Commissioner. The applicant is required to bring a motion to the Federal Court requesting an extension. This involves filing and serving a Notice of Motion. The Court has discretion to permit the applicant to bring the application, despite missing the filing deadline. The Court will examine whether the applicant meets the criteria established in the case law when deciding whether or not to exercise its discretion. The case law outlines the relevant criteria including the following:
12. What are the steps involved in a section 14 application?Step 1: Notice of ApplicationWithin 45 days of the release of the Privacy Commissioner’s report, the applicant must file a Notice of Application with the Federal Court Registry. This document includes the names of the parties and informs the respondent organization that it is implicated in a section 14 application under PIPEDA. The Notice of Application must set out the precise remedies sought, and state the grounds to be argued before the Court. The Notice of Application must also indicate whether the applicant will be relying on one or more affidavits. Once the Notice of Application is stamped and, therefore, issued by the Registry, it must be served on all respondents, as well as on the Privacy Commissioner, within 10 days. The applicant must file proof with the Court that they have served the respondent organization and the Privacy Commissioner within 10 days of serving the Notice of Application, by filing an Affidavit of Service. Step 2: Notice of AppearanceWithin 10 days of receiving the applicant’s Notice of Application, the respondent is required to serve the Applicant with its Notice of Appearance. The respondent then files its Notice of Appearance with the Court. This document indicates that the respondent will participate in the section 14 Court proceeding. Under Federal Courts Rule 145, if the respondent does not acknowledge the Notice of Application with a Notice of Appearance, the applicant is no longer required to serve the respondent with further documentation that it files with the Court before the hearing. Step 3: Applicant’s Affidavits and Documentary ExhibitsThe applicant’s affidavit has to be served on the respondent and then filed with the Federal Court Registry within 30 days from when the applicant filed the Notice of Application with the Registry. For more information on affidavits see Question 15. Step 4: Respondent’s Affidavit and Documentary ExhibitsThe respondent’s affidavit has to be served on the applicant and filed with the Federal Court Registry within 30 days from the date the respondent was served with the applicant’s affidavits. For more information on affidavits, see Question 15. Step 5: Cross-examination on AffidavitsThe applicant and respondent must complete the cross-examination on each other’s affidavits within 20 days after the filing of the respondent’s affidavit or the expiry of the time for doing so, whichever is earlier. For more information on cross-examining on affidavits, see Question 16. Step 6: Applicant’s RecordThe Applicant’s Record is required to be served on the respondent and filed with the Federal Court within 20 days after the parties have completed cross-examining each other, or the time limit provided for them to do so. NOTE: The full Applicant’s Record and Respondent’s Record includes the following documentation:
For more information on the Memorandum of Fact and Law see Question 17. Step 7: Respondent’s RecordThe respondent’s record must be served on the applicant and filed within 20 days from the date of service of the applicant’s record. For more information on the documentation required for the Respondent’s Record see the list outlined under Step 6. Step 8: Requisition for Hearing DateThe Requisition for Hearing Date must be prepared by the applicant, filed with the Registry and served on the respondent within 10 days of either the date the respondent served the Respondent’s Record or the time allotted for him or her to do so. Federal Courts Rule 314 provides that the requisition should include:
13. Are there particular formatting requirements for documents filed with the Federal Court?All documents filed with the Court must be printed on letter size (8” ½ X 11”) white paper and should only appear on one side of the page. The font must not be smaller than 12 point. There can be no more than 30 lines per page, not including headings. 14. What is involved in serving documents on the respondent?There are various ways that documents can be served on (i.e. delivered to) the other parties involved, including handing them to the relevant person and sending them by registered mail or fax. The Notice of Application must be served personally on the respondent, and Federal Courts Rules 128 to 137 describe the process for personal service which will vary according to whether the respondent is an individual, a corporation, a partnership, etc. For every document that the applicant serves on the respondent, the applicant must also file proof of service with the Registry, through an affidavit of service that affirms the documents were served within the appropriate timeframe. For more information on serving documents, see the Federal Courts Rules, which can be found on the Department of Justice Canada website at http://laws.justice.gc.ca/en/F-7/SOR-98-106/index.html. 15. What is involved in preparing an affidavit to support my application to the Federal Court?The affidavit should state the complete facts of the applicant’s case without making legal arguments or attempting to interpret the evidence. The Court will base its findings and ultimate judgment on the evidence found in the parties’ affidavits and exhibits filed with the Court (as well as any cross-examinations on the supporting affidavits). The applicant’s affidavit should outline, at minimum, the following information:
Affidavits must be limited to facts within the personal knowledge of the individual swearing (or affirming) the affidavit (usually the applicant). An applicant may also wish to include one or more affidavits from other individuals where there are relevant facts outside the persona knowledge of the applicant. Affidavits are required to include the signature of the person giving the information, the city the affidavit was signed in, and the date the document was signed. The affidavit must be signed in the presence of an authorized official, known as a Commissioner of Oaths, and the individual making the affidavit must make an oath or affirm the truth of the contents (see form 80 of the Federal Courts Rules). The Registry Office will have an official available to commission the affidavit. 16. What is the process for cross-examining on an affidavit?Federal Courts Rule 83 provides the right to cross-examine on affidavits filed in support of an application. Each party may cross-examine the opposing side after their affidavits have been filed with the Court. The cross-examinations generally take place in a boardroom setting, under oath, and in the presence of a stenographer who will record the examination. a. Applicant May Cross-examine the RespondentThe applicant should be prepared to cross-examine the respondent on its supporting affidavit if the applicant believes any of the information contained within the affidavit is untrue or inaccurate. In addition, cross-examination may cover any other matters relevant to the determination of the issues on the application. b. Applicant May be Cross-examined by the RespondentThe applicant should also be prepared to be cross-examined by the respondent on his/her affidavit. The respondent will require the applicant to attend and answer questions in regard to “any matters relevant to the determination of the issues on the application or motion in respect of which the affidavit was filed.”4 The applicant may refuse to answer questions that fall outside of those matters. Where there is a disagreement as to whether or not a question should be answered, it may be resolved by negotiation between the parties or by motion in front of a judge. c. Costs Related to Cross-examinationThere are costs involved in the cross-examination process. The party that requests the cross-examination will be required to pay for the associated costs. These costs include:
17. What is a Memorandum of Fact and Law?Under Federal Courts Rule 309(2)(h), a Memorandum of Fact and Law, often referred to as a factum, forms part of the Applicant’s Record. The document must be served, as part the record, on the respondent and then filed with the Federal Court 20 days after the completion of cross-examination, or the time set out for the cross-examination. The factum sets out the facts of the applicant’s case, the legal arguments the applicant is making, and the authorities on which the applicant is relying. Rule 70 sets out the required contents of the factum:
Rule 70 also informs that any federal statutes or regulations included with the Memorandum of Fact and Law should be included in both official languages, and that the memorandum should not exceed 30 pages in length, excluding the appendices listed above. 18. Will the Privacy Commissioner forward the documentation from her investigation file to the Federal Court?No. PIPEDA requires the Privacy Commissioner to keep her investigations confidential. Therefore, in order to uphold this general obligation, she has consistently objected to requests made by applicants under Federal Courts Rule 317 to transfer documentation held in her investigation file to the Federal Court, and the Court has maintained her objections. Exceptionally, the Privacy Commissioner may disclose information in the course of a court hearing under paragraph 20(4)(c) of PIPEDA. Whether she does so remains at her sole discretion, and she cannot be compelled to produce this evidence. This being said, individual complainants remain free to produce into evidence any portion of the investigation file that they may have received through correspondence with this Office. 19. What is involved in the hearing? What should I expect?Generally, no witnesses are called at a section 14 hearing since the judge will already have the parties’ affidavits and transcripts of cross-examinations on affidavits. The applicant will speak first, outlining the facts of the case, the legal arguments he or she is making, and the orders sought from the court. The respondent will then have a chance to respond. The respondent’s comments may be followed by a brief reply by the applicant on matters raised for the first time by the respondent. The hearing generally takes between half a day to one day, and can take up to several days in rare circumstances. 20. Will I be informed of the Court’s decision?Typically, the judge does not render a decision immediately following the hearing. The Court will release its decision several weeks or months later, sending copies of the judgment to the parties by fax or through the mail. The Court can decide to allow or dismiss the application and may also award costs. For information on costs, see Question 23(d). Either party can decide to appeal the decision of the Federal Court to the Federal Court of Appeal if they are unsatisfied with the Court’s ruling. 21. Are hearings held in English or in French?Under the Federal Courts Act, the Court conducts itself in both official languages. At the request of the parties, the hearing can be held in French or in English, or partly in French and partly in English. In order to have simultaneous translation of one language to another, Federal Courts Rule 31 allows the applicant to make a request, in writing, to the Court Administrator before the hearing begins to request an interpreter under the Official Languages Act. Similarly, under Rule 93, if the applicant has to be cross-examined on his or her affidavit, the party requesting the examination will have to arrange and pay for a translator to be present. 22. Where will the hearing be held?The Federal Courts Act entitles the Court to sit at any place in Canada and hold hearings in various locations. Generally, the hearing is held in the city that is requested by the applicant, both in the Notice of Application and the Requisition for a Hearing. Otherwise, the respondent can contest the applicant’s suggestion and request a hearing through other means, for example teleconferencing. For the locations of Federal Court courtrooms and Registry Offices, see Question 24. 23. What are some practical considerations to take into account when deciding whether to bring a section 14 application under PIPEDA?a. How often do cases go to Court?Very few section complaints made under PIPEDA ultimately result in a decision being rendered by the Federal Court. During the investigation phase, the Privacy Commissioner helps to settle a significant portion of cases amicably between the parties. Of those that complete the investigation phase, many are ultimately resolved when organizations agree to adopt and implement the Commissioner's recommendations. Few cases result in section 14 or section 15 applications being brought in Federal Court, and even fewer proceed to a hearing. For example, between 2001 and 2005, there were 38 applications brought to the Federal Court under section 14 of PIPEDA. Only a handful of these applications resulted in judgments. Most applications are settled by the parties before or during the hearing, are abandoned by applicants, or are discontinued for various reasons. b. What kind of time investment is involved in the process?Section 17 of PIPEDA requires the Court to hear and determine applications under section 14 in a summary way, to make the process as expedient as possible. For various reasons, however, such as additional motions and objections, the time between when the application is originally filed with the Court and when the hearing takes place can take up to two years. The process can also be time consuming for the parties involved. Bringing the application requires preparing the relevant documents (e.g. Notice of Application, affidavits, Memoranda of Fact and Law), filing the documentation with the court, cross-examining and being cross-examined on affidavits, as well as attending the hearing. Here is an estimated timeline of a section 14 application. c. What will the application process cost?There are various costs involved in the application process. Expenses can include, but are not limited to:
It is important to note that the Court has the discretion to order costs in favour of the successful party (i.e. a portion of the successful party’s costs, including legal fees will be reimbursed by the opposing side). The current case law suggests that a cost award made in favour of a self-represented litigant may include disbursements and possible “opportunity costs” for lost time pursuing the applicant’s interests (although not as compensation for lost revenue).6 However, applicants should also consider the possibility that they will have to pay the respondent’s costs (i.e. its expenses including a portion of its legal fees) if their section 14 application is ultimately unsuccessful. d. How is a section 14 application different from an application under section 18.1 of the Federal Courts Act?Under section 18.1 of the Federal Courts Act7, applicants can bring an application for judicial review which is different from a section 14 application under PIPEDA. Judicial review applications can be used to challenge the decision of the Commissioner, and the process used to arrive at the decision. These applications may be pursued only on very limited grounds, including if the applicant believes the Commissioner:
Judicial review may also be available in other limited circumstances, for example, where the complainant feels that the Commissioner has breached her obligations of procedural fairness. 24. Where are the offices of the Federal Court currently located?Federal Court Registry offices and courtrooms are located in cities throughout Canada. Applicants can file the documentation related to their application at the Registry Office in their area. The address and telephone numbers for the Federal Court offices are as follows: OttawaRegistries of the Federal Courts Mailing Address Courtrooms Telephone: 613-992-4238 CalgaryCanadian Occidental Tower Telephone: 403-292-5920 CharlottetownSir Louis Henry Davies Law Courts Telephone: 902-368-0179 EdmontonScotia Place Telephone: 780-495-4651 Fredericton82 Westmorland Street Telephone: 506-452-3016 Halifax1801 Hollis Street, 17th Floor Courtroom: Telephone: 902-426-3282 IqaluitNunavut Court of Justice Telephone: 867-975-6100 MontrealRegistry of the Federal Courts Telephone: 514-283-4820 QuébecPalais de Justice Telephone: 418-648-4920 ReginaThe Court House Telephone: 306-780-5268 SaskatoonThe Court House Telephone: 306-975-4509 Saint JohnThe Provincial Building Telephone: 506-636-4990 St. John’sThe Court House Telephone: 709-772-2884 TorontoRegistry of the Federal Courts Courtrooms Telephone: 416-973-3356 VancouverPacific Centre Telephone: 604-666-3232 WhitehorseAndrew A. Philipsen Law Centre Mailing Address: Telephone: 867-667-5441 Winnipeg363 Broadway, 4th Floor Telephone: 204-983-2509 YellowknifeThe Court House Telephone: 867-873-2044 More information about the Federal Court of Canada can be found on the Court’s website, located at http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Index NOTE: The above addresses and telephone numbers are subject to change and were accurate as of March 2006. 1 Personal Information Protection and Electronic Documents Act, 2000, S.C. c. 5 [PIPEDA]. 2 Englander v. Telus Communications 2004 FCA (C.A.) at para 47 or [2005] 2 F.C.R. 572. 3 Clearwater v. Canada (Minister of Canadian Heritage) [1999] 177 F.T.R. 103 at para. 16 [Clearwater]. 4 Ibid., at 413. 5 Rules for Regulating the Practice and Procedure in the Federal Court of Appeal and the Federal Court, SOR/98-106, Rule 70 [Federal Courts Rules]. 6 Rahman v. Canada (Minister of Citizenship and Immigration) (2002), 216 F.T.R. 263; Entreprises A.B. Rimouski Inc. v. Canada (2000), 262 N.R. 276 (Fed. C.A. ). 7Federal Courts Act, R.S. 1985, c. F-7[Federal Courts Act]. November 2006 |
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Date published: 2006-11-06 |
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Important Notices |