Interview with Tom Wappel

February 2007

Interviewee: Tom Wappel, M.P. Scarborough Southwest, Chairman, Standing Committee on Access to Information, Privacy and Ethics

Subject: Statutory Review of PIPEDA

Background: The Standing Committee on Access to Information, Privacy and Ethics is currently conducting interview in preparation for a report to parliament on amendments to PIPEDA.

Note:  Tom Wappel is a featured speaker at the CPO Roundtable, a privacy conference that is taking place in Ottawa on March 6 and 7. 

Nymity: How does the regulatory review of PIPEDA process work? What are the goals?

Wappel: The Act mandated that a Parliamentary Committee review the operation and effectiveness of the Act, five years after it came into force. This review was referred to our Committee by the House of Commons. Our Committee decided to hear from interested stakeholders, the public, the Ministry of Industry, and the Minister of Industry, and, of course, the Privacy Commissioner. The goals are to try to identify if there are any shortcomings in the Act, based on the experience with the Act since it has come into force, and make recommendations to the Minister has to how to improve the Act.

Nymity: Who is on the committee?

Wappel: The Committee is composed of 12 Members of Parliament: 5 Conservatives, 4 Liberals, 2 Bloc Quebecois and 1 NDP member. As you can see, the Opposition members outnumber the Government members. This is reflective of a minority Parliament.

Nymity: Who is presenting to the committee and how were they selected?

Wappel: The Committee, through its Steering Committee, in consultation with the Clerk of the Committee and the Committee's research staff, decided on a list of witnesses, representative of the groups outlined in Question 1. An invitation was also broadcast for interested parties to indicate to the Clerk their interest in either appearing before the Committee or submitting a written brief. Respondents were also considered by the Steering Committee. The goal was to have a broad and diverse group of interveners.

Nymity: What have been the key areas of concern by presenters so far?

Wappel: Some presenters have felt that the Act is more or less fine the way it is. Others have suggested that the Privacy Commissioner have order-making powers, that there be a definition of "work product" contained in the Act, that there be some sort of mandatory security breach notification mechanism, that there be the ability to more readily exchange information if it is in furtherance of potential fraud or other criminality, that it be easier for potential purchasers to obtain relevant information from sellers prior to purchase of the business, and that there be some recognition of the speed of development of the information highway, the potential exploitation of children on the internet, and the international aspects of the information age. That is just a short synopsis of some of what we have heard so far.

Nymity: What are the key areas of concern for the committee?

Wappel: The key concern of the Committee is to ensure that all those who wish to present either do so, submit a brief or have their concerns aired by others. We want to try to make sure that the Act will operate in the fairest and most efficient way possible into the future.

Nymity: What happens after the review is complete? What are the steps to amend PIPEDA?

Wappel: Upon the completion of the hearing of evidence, the Committee will draft a Report to the Government. We hope it will be unanimous, but it may not be. There may be concurring reports with additional comments, or there may be dissenting reports, however, there will certainly be a majority report. Once the Report is finalized and passed by the Committee, it is presented to the House of Commons, for the attention of the Government. The usual practice is for the relevant Ministry to consider the Report and draft a response for approval by its Minister, who will then have Cabinet approve the final Response, which will be tabled in the House of Commons. This may take up to 180 days approximately. The Response usually contains a detailed list of the Recommendations of the Committee which the Government will accept, or reject, with the reasons why.

Nymity: What happens if an election is called?

Wappel: If an election is called before the Committee issues its report, the work of the Committee is effectively lost. A new Parliament will decide how it wants to deal with the fact that a Report on PIPEDA has not been submitted to Parliament, despite the clear wording of the Act. Usually, but not always, the new Committee would adopt the evidence heard by our Committee, but, depending on the results of the election and the composition of the new Committee, it could be "back to the drawing board". If an election is called after the Committee reports but before the Government response, we would expect that the newly constituted Committee would adopt the previous Committee's Report, resubmit it to the new House and request a response from the new Government. However, there is nothing this Committee can do to bind a future Committee to a particular course of action. If an election is called after the Government issues it response, but before any Recommendations are implemented, the newly elected Government is not bound to follow the Response of the previous Government.

Nymity: When would we expect PIPEDA to be amended?

Wappel: Given my answer to the above, it is only a guessing game as to when amendments to PIPEDA would be forthcoming. I would expect that, before any major recommendation were implemented, the Ministry would hold consultations with stakeholders to discuss how most efficiently to implement the changes.

Nymity: In what form would PIPEDA be modified? Could the CSA principles be modified?

Wappel: It is too early to comment on the form of modifications to PIPEDA, if any, as we are still hearing evidence and have not yet begun to discuss our draft Report.

Nymity: Have there been any concerns relating to Quebec's constitutional challenge of PIPEDA?

Wappel: The issue of Quebec's constitutional challenge to PIPEDA has been raised by some witnesses and Committee members. As far as we can tell, the matter is stalled in the courts. Until the courts advise otherwise, we have to assume that the Act is constitutional.

Nymity: In closing, what else is on the agenda for the committee?

Wappel: The Committee's first report of this Parliament called upon the Minister of Justice to prepare and submit to Parliament a new Access to Information Act, by December 15, 2006, for consideration by the Committee. This did not happen. The Committee has requested the Minister of Justice to appear before the Committee in March, to discuss this issue further. The Committee is also aware that the Privacy Act is in need of review and modernization. Also, the Committee has decided to look into Justice Gomery's recommendations for better governance, with a view to seeing what has been done and what more needs to be done.