Law Times

Law Times • January 24, 2011 Stoddart calls for new powers BY TOM KORSKI For Law Times OTTAWA — Canada's pri- vacy commissioner is advo- cating for new enforcement powers after faulting the Fed- eral Court for "only once" awarding damages under na- tional legislation. "I am increasingly of the view that we may need stronger powers in order to be an eff ective privacy guard- ian," Jennifer Stoddart said in seeking unprecedented authority to initiate investi- gations, levy penalties, and publicly name violators. "Canada has become one 'Hefty fines get just about any company to sit up and take notice,' says Jennifer Stoddart. of the few major countries where the data protection regulator lacks the ability to issue orders and to impose fi nes," Stoddart told law students at the University of Ottawa on Wednesday. "Th e Federal Court does have the power to impose damages against organizations," said Stoddart, citing provisions in the Per- sonal Information Protection and Electronic Documents Act. "Th e court has awarded damages only once in the decade since PIPEDA has been in force." Th at ruling came on Dec. 20 in Nammo v. TransUnion of Canada Inc., in which the Calgary-based credit agency received a $5,000 fi ne for providing inaccurate information to the Royal Bank of Canada in regards to a client's loan application. Th e appli- cant, Mirza Nammo, a partner at an Alberta trucking fi rm, sought $250,000 in damages. Asked by Law Times how she accounted for the court's record, Stoddart replied: "I think you'd have to ask that question to the Federal Court. I must say that in cases I referred to, there were what lawyers call kind of bad facts. Th ey weren't perhaps the best cases in terms of proving the point about damages." Stoddart also acknowledged there "hasn't been much litigation" since the privacy legislation passed in 2000. "Companies have been very, very compliant when, at the end of an investigation, we say, 'Well, we would like you to do this or we'll go to Federal Court.' All the companies settle." Yet Stoddart, noting she's not "dealing with parking tickets," said her offi ce has been hampered by its inability to launch inves- tigations without relying on public complaints. "Th e problem is, a complaints-driven system has, I think, inherent problems when you're dealing with an issue that's so complex. . . . People cannot see, understand or know their privacy violations." In her fi rst major remarks since her reappointment in Novem- ber, Stoddart spoke approvingly of practices in Britain and Spain, where privacy regulators have levied six-fi gure fi nes on violators. "Hefty fi nes get just about any company to sit up and take notice and to place a greater importance on compliance," she said. Speaking to 140 students at the university's Centre for Law, Technology, and Society, Stoddart also advocated for broader au- thority to "name names" of private organizations under investiga- tion. "I personally have a growing discomfort with the secretive nature of how we work," she said. Under the act, the commissioner may only name private sub- jects of an investigation if it's deemed in the public interest, some- thing Stoddard called "a very high threshold indeed." "It seems to me that not naming names is robbing the Can- adian public of much of the educational value of our investigative fi ndings," she noted. Stoddart added her proposals hadn't been drafted as legislative amendments but were submitted for consideration by MPs in a scheduled review of privacy legislation expected later this year. For more, please see page 12. LT Recruiting? Post your position on GREAT RATES. GREAT REACH. GREAT RESULTS. Contact Sandy Shutt at sandra.shutt@thomsonreuters.com for details. www.lawtimesnews.com JobsInLaw 1-8 pg 5X.indd 1 1/20/11 2:08:15 PM Visit Us Online - Odd no. 3.indd 1 1/20/11 2:47:00 PM Canadian Lawyer | Law Times | 4Students | InHouse | Legal Feeds Fresh Canadian legal news and analysis every week. NEWS PAGE 3 Untitled-2 1 Get more online lawtimesnews.com canadianlawyermag.com 1/19/11 10:23:35 AM

• Cover
• Public Call
• Transit Solution
• Focus On Privacy Law