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(b) to do so would reveal confidential
commercial information;
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(c) to do so could reasonably be expected to
threaten the life or security of another
individual;
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(c.1) the information was collected under
paragraph 7(1)(b); or
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(d) the information was generated in the
course of a formal dispute resolution
process.
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However, in the circumstances described in
paragraph (b) or (c), if giving access to the
information would reveal confidential
commercial information or could reasonably
be expected to threaten the life or security of
another individual, as the case may be, and
that information is severable from the record
containing any other information for which
access is requested, the organization shall give
the individual access after severing.
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| Limit
|
(4) Subsection (3) does not apply if the
individual needs the information because an
individual's life, health or security is
threatened.
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| Notice
|
(5) If an organization decides not to give
access to personal information in the
circumstances set out in paragraph (3)(c.1),
the organization shall, in writing, so notify the
Commissioner, and shall include in the
notification any information that the
Commissioner may specify.
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| Sensory
disability
|
10. An organization shall give access to
personal information in an alternative format
to an individual with a sensory disability who
has a right of access to personal information
under this Part and who requests that it be
transmitted in the alternative format if
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(a) a version of the information already
exists in that format; or
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(b) its conversion into that format is
reasonable and necessary in order for the
individual to be able to exercise rights
under this Part.
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Filing of Complaints
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| Contravention
|
11. (1) An individual may file with the
Commissioner a written complaint against an
organization for contravening a provision of
Division 1 or for not following a
recommendation set out in Schedule 1.
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| Commissioner
may initiate
complaint
|
(2) If the Commissioner is satisfied that
there are reasonable grounds to investigate a
matter under this Part, the Commissioner may
initiate a complaint in respect of the matter.
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| Time limit
|
(3) A complaint that results from the refusal
to grant a request under section 8 must be filed
within six months, or any longer period that
the Commissioner allows, after the refusal or
after the expiry of the time limit for
responding to the request, as the case may be.
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| Notice
|
(4) The Commissioner shall give notice of
a complaint to the organization against which
the complaint was made.
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|
Investigations of Complaints
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| Powers of
Commissioner
|
12. (1) The Commissioner shall conduct an
investigation in respect of a complaint and, for
that purpose, may
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(a) summon and enforce the appearance of
persons before the Commissioner and
compel them to give oral or written
evidence on oath and to produce any
records and things that the Commissioner
considers necessary to investigate the
complaint, in the same manner and to the
same extent as a superior court of record;
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(c) receive and accept any evidence and
other information, whether on oath, by
affidavit or otherwise, that the
Commissioner sees fit, whether or not it is
or would be admissible in a court of law;
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(d) at any reasonable time, enter any
premises, other than a dwelling-house,
occupied by an organization on satisfying
any security requirements of the
organization relating to the premises;
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(e) converse in private with any person in
any premises entered under paragraph (d)
and otherwise carry out in those premises
any inquiries that the Commissioner sees
fit; and
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|
|
(f) examine or obtain copies of or extracts
from records found in any premises entered
under paragraph (d) that contain any matter
relevant to the investigation.
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| Dispute
resolution
mechanisms
|
(2) The Commissioner may attempt to
resolve complaints by means of dispute
resolution mechanisms such as mediation and
conciliation.
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| Delegation
|
(3) The Commissioner may delegate any of
the powers set out in subsection (1) or (2).
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| Return of
records
|
(4) The Commissioner or the delegate shall
return to a person or an organization any
record or thing that they produced under this
section within ten days after they make a
request to the Commissioner or the delegate,
but nothing precludes the Commissioner or
the delegate from again requiring that the
record or thing be produced.
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|
| Certificate of
delegation
|
(5) Any person to whom powers set out in
subsection (1) are delegated shall be given a
certificate of the delegation and the delegate
shall produce the certificate, on request, to the
person in charge of any premises to be entered
under paragraph (1)(d).
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|
Commissioner's Report
|
|
| Contents
|
13. (1) The Commissioner shall, within one
year after the day on which a complaint is filed
or is initiated by the Commissioner, prepare a
report that contains
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(a) the Commissioner's findings and
recommendations;
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|
(b) any settlement that was reached by the
parties;
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|
(c) if appropriate, a request that the
organization give the Commissioner,
within a specified time, notice of any action
taken or proposed to be taken to implement
the recommendations contained in the
report or reasons why no such action has
been or is proposed to be taken; and
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(d) the recourse, if any, that is available
under section 14.
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| Where no
report
|
(2) The Commissioner is not required to
prepare a report if the Commissioner is
satisfied that
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(a) the complainant ought first to exhaust
grievance or review procedures otherwise
reasonably available;
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(b) the complaint could more appropriately
be dealt with, initially or completely, by
means of a procedure provided for under the
laws of Canada, other than this Part, or the
laws of a province;
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|
|
(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
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|
(d) the complaint is trivial, frivolous or
vexatious or is made in bad faith.
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|
|
If a report is not to be prepared, the
Commissioner shall inform the complainant
and the organization and give reasons.
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| Report to
parties
|
(3) The report shall be sent to the
complainant and the organization without
delay.
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|
Hearing by Court
|
|
| Application
|
14. (1) A complainant may, after receiving
the Commissioner's report, apply to the Court
for a hearing in respect of any matter in respect
of which the complaint was made, or that is
referred to in the Commissioner's report, and
that is referred to in clause 4.1.3, 4.2, 4.3.3,
4.4, 4.6, 4.7 or 4.8 of Schedule 1, in clause 4.3,
4.5 or 4.9 of that Schedule as modified or
clarified by Division 1, in subsection 5(3) or
8(6) or (7) or in section 10.
|
|
| Time of
application
|
(2) The application must be made within
forty-five days after the report is sent or within
any further time that the Court may, either
before or after the expiry of those forty-five
days, allow.
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|
| For greater
certainty
|
(3) For greater certainty, subsections (1)
and (2) apply in the same manner to
complaints referred to in subsection 11(2) as
to complaints referred to in subsection 11(1).
|
|
| Commissioner
may apply or
appear
|
15. The Commissioner may, in respect of a
complaint that the Commissioner did not
initiate,
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|
|
(a) apply to the Court, within the time
limited by section 14, for a hearing in
respect of any matter described in that
section, if the Commissioner has the
consent of the complainant;
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|
|
(b) appear before the Court on behalf of any
complainant who has applied for a hearing
under section 14; or
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|
|
(c) with leave of the Court, appear as a party
to any hearing applied for under section 14.
|
|
| Remedies
|
16. The Court may, in addition to any other
remedies it may give,
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|
(a) order an organization to correct its
practices in order to comply with sections 5
to 10;
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|
(b) order an organization to publish a notice
of any action taken or proposed to be taken
to correct its practices, whether or not
ordered to correct them under paragraph
(a); and
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|
|
(c) award damages to the complainant,
including damages for any humiliation that
the complainant has suffered.
|
|
| Summary
hearings
|
17. An application made under section 14
shall be heard and determined without delay
and in a summary way unless the Court
considers it inappropriate to do so.
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|
| To ensure
compliance
|
18. (1) The Commissioner may, on
reasonable notice and at any reasonable time,
audit the personal information management
practices of an organization if the
Commissioner has reasonable grounds to
believe that the organization is contravening
a provision of Division 1 or is not following a
recommendation set out in Schedule 1, and for
that purpose may
|
|
|
|
(a) summon and enforce the appearance of
persons before the Commissioner and
compel them to give oral or written
evidence on oath and to produce any
records and things that the Commissioner
considers necessary for the audit, in the
same manner and to the same extent as a
superior court of record;
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|
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|
|
(c) receive and accept any evidence and
other information, whether on oath, by
affidavit or otherwise, that the
Commissioner sees fit, whether or not it is
or would be admissible in a court of law;
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|
|
(d) at any reasonable time, enter any
premises, other than a dwelling-house,
occupied by the organization on satisfying
any security requirements of the
organization relating to the premises;
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|
|
(e) converse in private with any person in
any premises entered under paragraph (d)
and otherwise carry out in those premises
any inquiries that the Commissioner sees
fit; and
|
|
|
|
(f) examine or obtain copies of or extracts
from records found in any premises entered
under paragraph (d) that contain any matter
relevant to the audit.
|
|
| Delegation
|
(2) The Commissioner may delegate any of
the powers set out in subsection (1).
|
|
| Return of
records
|
(3) The Commissioner or the delegate shall
return to a person or an organization any
record or thing they produced under this
section within ten days after they make a
request to the Commissioner or the delegate,
but nothing precludes the Commissioner or
the delegate from again requiring that the
record or thing be produced.
|
|
| Certificate of
delegation
|
(4) Any person to whom powers set out in
subsection (1) are delegated shall be given a
certificate of the delegation and the delegate
shall produce the certificate, on request, to the
person in charge of any premises to be entered
under paragraph (1)(d).
|
|
| Report of
findings and
recommendati
ons
|
19. (1) After an audit, the Commissioner
shall provide the audited organization with a
report that contains the findings of the audit
and any recommendations that the
Commissioner considers appropriate.
|
|
| Reports may
be included in
annual reports
|
(2) The report may be included in a report
made under section 25.
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|
|
|
|
|
|
|
|
|
| Confidentialit
y
|
20. (1) Subject to subsections (2) to (5),
13(3) and 19(1), the Commissioner or any
person acting on behalf or under the direction
of the Commissioner shall not disclose any
information that comes to their knowledge as
a result of the performance or exercise of any
of the Commissioner's duties or powers under
this Part.
|
|
| Public interest
|
(2) The Commissioner may make public
any information relating to the personal
information management practices of an
organization if the Commissioner considers
that it is in the public interest to do so.
|
|
| Disclosure of
necessary
information
|
(3) The Commissioner may disclose, or
may authorize any person acting on behalf or
under the direction of the Commissioner to
disclose, information that in the
Commissioner's opinion is necessary to
|
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|
|
(a) conduct an investigation or audit under
this Part; or
|
|
|
|
(b) establish the grounds for findings and
recommendations contained in any report
under this Part.
|
|
| Disclosure in
the course of
proceedings
|
(4) The Commissioner may disclose, or
may authorize any person acting on behalf or
under the direction of the Commissioner to
disclose, information in the course of
|
|
|
|
(a) a prosecution for an offence under
section 28;
|
|
|
|
(b) a prosecution for an offence under
section 132 of the Criminal Code (perjury)
in respect of a statement made under this
Part;
|
|
|
|
(c) a hearing before the Court under this
Part; or
|
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|
|
(d) an appeal from a decision of the Court.
|
|
| Disclosure of
offence
authorized
|
(5) The Commissioner may disclose to the
Attorney General of Canada or of a province,
as the case may be, information relating to the
commission of an offence against any law of
Canada or a province on the part of an officer
or employee of an organization if, in the
Commissioner's opinion, there is evidence of
an offence.
|
|
| Not
competent
witness
|
21. The Commissioner or person acting on
behalf or under the direction of the
Commissioner is not a competent witness in
respect of any matter that comes to their
knowledge as a result of the performance or
exercise of any of the Commissioner's duties
or powers under this Part in any proceeding
other than
|
|
|
|
(a) a prosecution for an offence under
section 28;
|
|
|
|
(b) a prosecution for an offence under
section 132 of the Criminal Code (perjury)
in respect of a statement made under this
Part;
|
|
|
|
(c) a hearing before the Court under this
Part; or
|
|
|
|
(d) an appeal from a decision of the Court.
|
|
| Protection of
Commissioner
|
22. (1) No criminal or civil proceedings lie
against the Commissioner, or against any
person acting on behalf or under the direction
of the Commissioner, for anything done,
reported or said in good faith as a result of the
performance or exercise or purported
performance or exercise of any duty or power
of the Commissioner under this Part.
|
|
| Libel or
slander
|
(2) For the purposes of any law relating to
libel or slander,
|
|
|
|
(a) anything said, any information supplied
or any record or thing produced in good
faith in the course of an investigation or
audit carried out by or on behalf of the
Commissioner under this Part is privileged;
and
|
|
|
|
(b) any report made in good faith by the
Commissioner under this Part and any fair
and accurate account of the report made in
good faith for the purpose of news reporting
is privileged.
|
|
| Consultations
with
provinces
|
23. (1) If the Commissioner considers it
appropriate to do so, or on the request of an
interested person, the Commissioner may, in
order to ensure that personal information is
protected in as consistent a manner as
possible, consult with any person who, under
provincial legislation that is substantially
similar to this Part, has powers and duties
similar to those of the Commissioner.
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|