Dockets: T-190-20
T-473-20
Citation: 2021 FC 599
Ottawa, Ontario, June 15, 2021
PRESENT: The Associate Chief Justice Gagné
| Docket: T-190-20
|
| BETWEEN:
|
| PRIVACY COMMISSIONER OF CANADA
|
| Applicant
|
| and
|
| FACEBOOK, INC.
|
| Respondent
|
| Docket: T-473-20
|
| AND BETWEEN:
|
| FACEBOOK, INC.
|
| Applicant
|
| and
|
| PRIVACY COMMISSIONER OF CANADA
|
| Respondent
|
ORDER AND REASONS
I.
Overview
[1]
These two cases are closely related and jointly case-managed. The first is an Application under paragraph 15(a) of the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 [PIPEDA] by the Privacy Commissioner of Canada [Commissioner] against Facebook, Inc. [PIPEDA Application]. The second is an Application for Judicial Review brought by Facebook against the Commissioner’s “decisions to investigate and continue investigating, the investigation process … and the resulting Report of Findings #2019-002 dated April 25, 2019”
[Facebook Application]. The Complaint and the investigation were triggered by the March 2018 media reports concerning the misuse of the Facebook developer platform by the political consulting firm Cambridge Analytica.
[2]
In the PIPEDA Application, Facebook has brought a motion to strike large portions of the affidavit of Michael Maguire on the basis that it contains inadmissible hearsay, arguments, legal opinions, foreign materials, irrelevant information and other inadmissible assertions. In the Facebook Application, the Commissioner has brought a motion to strike the entire application on the basis that it is out of time and that, in any event, Facebook has an alternative to judicial review. This Court heard both motions together.
[3]
For the reasons set out below, Facebook’s motion will be granted in part and the Commissioner’s motion will be dismissed.
II.
Factual background
[4]
The Commissioner commenced an investigation into Facebook’s compliance with PIPEDA in March 2018 following a complaint made to the Office of the Privacy Commissioner [OPC] against Facebook. The complainants stated that Facebook allowed Cambridge Analytica to access Facebook users’ information without their knowledge or consent. In April 2019, the Commissioner issued its Report of Findings from the investigation, finding that Facebook breached PIPEDA.
[5]
The Commissioner subsequently applied to this Court for a de novo hearing in respect of the findings made in the report and for relief under subsection 15(a) of PIPEDA. In support of his application, the Commissioner filed the affidavit of Michael Maguire, Director of the Office of the OPC’s PIPEDA Compliance Directorate. The affidavit contains 162 paragraphs and with its 82 exhibits attached thereto, it runs over 3300 pages.
[6]
A few months after the Commissioner filed his Application and close to one year after the OPC filed its report, Facebook filed its Application for Judicial Review. Facebook states that the Commissioner’s decision to conduct and complete an investigation into the complaint was unreasonable and lacked jurisdiction.
III.
Facebook’s motion to strike (T-190-20)
[7]
This motion raises a single issue and it is whether over 100 paragraphs of Mr. Maguire’s 162-paragraph affidavit, along with 32 of the 82 exhibits filed in support thereof – as identified by Facebook in Schedule A to its written representations – should be struck out.
[8]
Facebook submits different reasons why the evidence is inadmissible:
i. Hearsay;
ii. Arguments, legal conclusions and opinions;
iii. Foreign materials;
iv. Other irrelevant materials;
v. Communications protected by settlement privilege;
vi. Materials protected by parliamentary privilege; and,
vii. Evidence whose potential probative value is outweighed by its potential prejudicial effects.
[9]
The parties have addressed each contested paragraph and exhibit in the form of a chart that I will follow in these reasons. My analysis will largely proceed in the order of the paragraphs in Mr. Maguire’s affidavit, although I have grouped paragraphs for convenience where a similar rationale applied.
A.
The law
[10]
In Hassouna v Canada (Citizenship and Immigration), 2016 FC 1189 at para 4 [Hassouna], the Court reminded the parties of the exceptional nature of a motion to strike in the following terms:
the general rule is that motions such as this ought to be left to the hearings judge, as was stated by the Federal Court of Appeal in Canadian Tire Corp v PS Partsource Inc, 2001 FCA 8 at para 18:
Nonetheless, I would emphasize that motions to strike all or parts of affidavits are not to become routine at any level of this Court. This is especially the case where the question is one of relevancy. Only in exceptional cases where prejudice is demonstrated and the evidence is obviously irrelevant will such motions be justified. In the case of motions to strike based on hearsay, the motion should only be brought where the hearsay goes to a controversial issue, where the hearsay can be clearly shown and where prejudice by leaving the matter for disposition at trial can be demonstrated.
[11]
On the other hand, in Coldwater First Nation v Canada (Attorney General), 2019 FCA 292 [Coldwater], the Federal Court of Appeal acknowledged that interlocutory motions and determinations may be useful to “clear away issues that might divert the parties and the hearing panel from the real merits of the case”
(at para 10). This seems particularly relevant here, considering the volume of Mr. Maguire’s affidavit and the extent of Facebook’s challenge; determining whether any exclusionary principles apply might help the parties draft their submissions for the hearing on the merits.
[12]
In addition, the Federal Court of Appeal in Coldwater confirms that obviously irrelevant evidence may be struck (at para 14). However, where argumentation is “isolated and insignificant”
, then the hearing judge can properly ignore the arguments (at para 22). Coldwater also notes that, “[a]rgumentation in an affidavit can prejudice the opposing side. But more often than not, it has the potential to wreak more prejudice on the party presenting the affidavit”
(at para 21).
B.
Analysis
[13]
To avoid overburdening these reasons, Facebook’s Schedule A to its written representations will be Schedule A to these reasons, footnotes omitted and the affidavit of Michael Maguire will be Schedule B, footnotes omitted.
(1)
Paragraphs 4 and 5
[14]
Facebook submits that these paragraphs contain opinions, arguments, legal conclusion and loaded language. They contain Mr. Maguire’s opinion on what private organisations must do to comply with PIPEDA. This defeats the purpose of affidavit evidence, which is to supply fact evidence without gloss, argument or commentary, and should be struck (Duyvenbode v Canada (Attorney General), 2009 FCA 120 at para 2; Canada (Attorney General) v Quadrini, 2010 FCA 47 at para 18).
[15]
I do not agree. In my view, these paragraphs contain a simple summary of PIPEDA and can be admitted for a background of the legislative regime, something with which Mr. Maguire is familiar given his position as the Director of the OPC’s PIPEDA Compliance Directorate (Hassouna at para 14). There is no significant interpretation of PIPEDA nor argument as to how PIPEDA should be interpreted or applied by the Court. The affiant’s narrative demonstrates the breadth of “personal information”
as defined in subsection 2(1) of PIPEDA: “information about an identifiable individual”
. I agree with the Commissioner that paragraphs 4-5 provide some context to the complaint and investigation.
(2)
Paragraph 9
[16]
Facebook states that this paragraph contains potentially prejudicial hearsay, opinions, arguments, loaded language and evidence that are not relevant to the Commissioner Application.
[17]
However, Facebook remains quite vague as to how paragraph 9 would equate to opinion, legal argument or loaded commentary. In my view, it is not.
[18]
For its arguments on hearsay, Facebook relies on Rule 81(1) of the Federal Courts Rules, SOR/98-106, which states, “[a]ffidavits shall be confined to facts within the deponent’s personal knowledge”
. Facebook also relies on the common law rules of evidence on hearsay: a statement is hearsay when it is an out of court statement adduced for the truth of its contents, without any opportunity for contemporaneous cross examination of the declarant (R v Starr, 2000 SCC 40 at para 162; R v Khelawon, 2006 SCC 57 at para 35 [Khelawon]; R v Youvarajah, 2013 SCC 41 at paras 18-21).
[19]
I disagree with Facebook. Paragraph 9 is found under the heading “overview of the complaint”
. In my view, that is exactly what this paragraph amounts to – it summarizes the background of the complaint, which includes Cambridge Analytica’s role and conduct. The paragraph merely summarizes what the media “disclosed”
and what the complainant “noted”
– none of this assumes the truth of either media reports or the complaint. In addition, it is relevant as background to the complaint, which grounded the Commissioner’s investigation. As stated in Coldwater above, “affidavits [which] set out background evidence and summarize evidence found elsewhere in order to orient the Court”
are not hearsay (at para 38).
(3)
Paragraph 11
[20]
Again, Facebook argues this paragraph contains opinion, argument, legal conclusions or loaded language.
[21]
And again, I do not agree. This is a summary of evidence found elsewhere in the record – namely in the Commissioner’s Report of Findings – of which Mr. Maguire has personal knowledge given his position within the OPC. The OPC’s findings are non-binding on the Court who will review the evidence de novo. This statement is therefore not prejudicial to Facebook and I do not think it meets any test for inadmissibility.
(4)
Paragraphs 20, 22-24, 26-29, 34-36, 41, 45, 61, 62 and 87
[22]
Most of these paragraphs reference Facebook’s own statements and reports. They relay information concerning some of Facebook’s functionalities, its main source of revenue, programming interface, methods of advertising, third-party access to its platform and to its users’ personal information, its shared login facilities with external Apps, etc.
[23]
In addition, some of these paragraphs summarize the OPC’s findings, which, as stated above, are not binding on the Court.
[24]
In my view, none of this information is clearly irrelevant because it relates to Facebook’s platform, its reach and abilities, as well as the OPC’s investigation.
[25]
Facebook cannot shield itself from its own public representations and the hearing judge can determine what weight, if any, to give to Facebook’s public statements and the OPC’s findings. That will be the crux of the de novo review.
[26]
Furthermore, it is expected that Mr. Maguire would have personal knowledge of Facebook’s operations given his position as the Director of the PIPEDA Compliance Directorate within the OPC, as well as any matter related to the Cambridge Analytica data breach since it triggered the investigation.
(5)
Paragraph 21 and Exhibit H
[27]
In this paragraph, the Commissioner discusses Facebook’s user base, as reported by Facebook itself, and files a report by Statista.com, which states that in 2018, there were 23.6 million Facebook users in Canada.
[28]
Facebook submits that the Commissioner impermissibly relies on the Statista report for the truth of its contents. The Commissioner has not tendered anyone from Statista as a witness, and therefore this Exhibit and paragraph should be struck for hearsay.
[29]
The Commissioner, on the other hand, submits that it only relies upon one data point: the number of Facebook users in 2018. The Commissioner asserts that the single Statista data point is both reliable and necessary. It is reliable because, as stated in Mr. Maguire’s affidavit, it comes from a reliable data provider. It is also necessary because it would be “inconvenient, inefficient, and impractical”
to require evidence from Statista on a single data point.
[30]
I note here that the recent guidelines provided by the Federal Court of Appeal in Coldwater support the Commissioner’s understanding of necessity – that it is circumscribed by the context:
[53] First, necessity must be “given a flexible definition, capable of encompassing diverse situations” in which “the relevant direct evidence is not, for a variety of reasons, available”: R. v. Smith, [1992] 2 S.C.R. 915 at 933-934. The “necessity [may not be] so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated”: Smith at 934, quoting J.H. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, vol. III, 2d ed. (Boston: Little, Brown & Co., 1923) at §1420-22.
[54] Second, section 18.4 of the Federal Courts Act provides that applications for judicial review “shall be heard and determined without delay and in a summary way” and, on top of that, this Court has ordered a highly expedited schedule for the consolidated applications. The need for speed and efficiency affects the necessity analysis.
[55] Third, sometimes the nature and practical exigencies of a proceeding can affect the admissibility of evidence and, in particular, the Court’s evaluation of necessity.
[31]
In my view, Facebook’s argument lacks consideration for streamlining and efficiency. Paragraph 21 and associated Exhibit H are admissible only for the one single data point identified by the Commissioner. To require witness evidence on that point would be impractical.
(6)
Paragraphs 25, 30-32, 38, 48, 49 and 50; Exhibits I, J, K, L, M, N, O, P, Q and S
[32]
In these paragraphs, Mr. Maguire refers to academic or newspaper articles in the course of his discussion on Facebook’s platform and Facebook’s application programming interface.
[33]
Academic articles, found at Exhibits I, J, and K, are referred to in paragraph 25 when describing Facebook’s user settings; according to Mr. Maguire, they “are articles by privacy law scholars and other researchers who have raised concerns about this kind of ‘self-management’ approach to obtaining consent”
.
[34]
The Commissioner submits the articles are not being tendered for the truth of their contents, but simply to demonstrate the existence of “controversy and uncertainty as to the extent that user ‘default’ settings can reflect or demonstrate meaningful consent on the part of the User”
.
[35]
Facebook, on the other hand, submits that Mr. Maguire’s affidavit cannot backdoor expert evidence that was not adduced by a properly qualified expert before this Court.
[36]
I agree with Facebook that it is not proper for Mr. Maguire to refer to reports from purported experts without giving Facebook the opportunity to test the contents of their articles, merely on the basis that the articles demonstrate the existence of a controversy. The Commissioner’s arguments that the articles are not being adduced for the truth of their contents is not convincing. Mr. Maguire referenced the articles to show that Facebook user settings invite criticism. Reading paragraph 25 yields the impression, in my view, that Mr. Maguire also criticizes Facebook’s user settings since he selectively refers to the existence of critical articles. I therefore agree with Facebook that Exhibits I, J and K are impermissible hearsay and that expert opinion can be adduced through a properly qualified expert who can be cross-examined.
[37]
Other than referring to the Exhibits, paragraph 25 also summarizes Facebook’s policies on user settings. The Commissioner submits that this information is within Mr. Maguire’s own knowledge because of the OPC’s investigation and further that this information was admitted by Facebook during the OPC investigation. In my view, paragraph 25 is admissible other than the reference to the Exhibits; the summary of Facebook user policy settings can very well fall within Mr. Maguire’s knowledge due to his position within the OPC during the investigation (a similar rationale was applied to the affiant in Hassouna at para 14).
[38]
Paragraphs 30-32, 48 and 50 refer to news articles found at Exhibits L, N, O, Q and S. The Commissioner submits that none of these articles are submitted for the truth of their contents. They are only submitted to show how public reports on Facebook’s data handling practices differed from formal policies, or for background such as timing.
[39]
I do not agree with the Commissioner that Exhibits L, N and O are not tendered for the truth of their contents. Mr. Maguire refers to the news articles in his affidavit as examples of problems with Facebook’s application programming interface. Therefore, Mr. Maguire clearly places stock in the contents of the articles and I agree with Facebook that the articles are not reliable for that purpose. In sum, I agree with Facebook that paragraphs 30-32, along with Exhibits L, N and O will be struck out as inadmissible.
[40]
Yet, I find that Exhibit M, found within paragraph 31, is admissible because it is a statement made by Facebook itself (see Thibodeau v Halifax International Airport Authority, 2018 FC 223 at para 22 [Thibodeau] and R v Evans, [1993] 3 S.C.R. 653 at 664).
[41]
I also agree with the Commissioner that paragraph 48 and its associated Exhibit Q are merely used within Mr. Maguire’s affidavit to establish a timeline. Since they were not adduced for the truth of their contents, they cannot be said to be hearsay. Paragraph 49, which references The Guardian article merely for timeline, is similarly admissible.
[42]
Paragraph 50 and associated Exhibit S purport to demonstrate “further details”
related to Cambridge Analytica. As stated previously, a news article like The Guardian one is not a reliable source of information for details on Cambridge Analytica’s use of personal data; the Commissioner has the ability to file affidavit evidence if need be. Therefore, I find that paragraph 50 and associated Exhibit S were adduced for the truth of their contents. Since the article is not a reliable source of information before this Court, it is not admissible. Paragraphs 50 and associated Exhibit S will be struck.
[43]
Finally, filed as Exhibit P are research papers. They will be struck for the same reasons as the other academic papers – that this is not the proper method of adducing academic articles and it prejudices Facebook by giving Facebook the inability to test the contents of the articles. Mr. Maguire uses these articles as an example of what he is discussing in paragraph 38 – “disclosure to Apps of a wide variety of information associated with a User’s profile”
– and therefore he gives some credence to their content. However, paragraph 38 is otherwise admissible since it is information about Facebook that Mr. Maguire would know from his involvement with the OPC’s investigation.
(7)
Paragraphs 51-52 and Exhibit T
[44]
These paragraphs concern the testimony of Christopher Wylie, former data consultant for Cambridge Analytica, before the House of Commons Standing Committee on Access to Information. Exhibit T is the transcript of that testimony.
[45]
Facebook seeks to have that evidence struck because it is hearsay and not relevant to the issues before the Court.
[46]
The Commissioner acknowledges these are out of court statements but submits they are admissible for meeting the twin criteria of reliability and necessity. First, the transcript is reliable because the testimony was given under oath (R v Bradshaw, 2017 SCC 35 at para 28). Second, it is necessary due to the inconvenience of having Mr. Wylie appear during a summary application.
[47]
I agree with The Commissioner that Mr. Wylie’s evidence meets the twin criteria of reliance and necessity for the reasons given. In my view, the application judge will be able to weigh the probative value of Mr. Wylie’s answers during the de novo hearing to be held on the merits. It is true that Facebook will not be able to cross-examine Mr. Wylie but I do not believe the prejudice in admitting this transcript outweighs the probative value – and for what it is worth, the Commissioner did not examine him either, nor did he direct the evidence.
(8)
Paragraphs 53, 54, 58 and Exhibits U, V, W, Z, AA, BB, CC, DD, EE, FF, GG, HH, II, JJ, KK, LL
[48]
These paragraphs and exhibits concern testimonies given by Facebook’s CEO and other officers, and by representatives of third parties involved in the “Cambridge Analytica scandal”
before the House of Commons Standing Committee on Access to Information, as well as before foreign regulatory bodies. They also concern investigative proceedings related to the “Cambridge Analytica scandal”
and initiated by foreign data protection authorities. For example:
Facebook CEO’s testimony before the Committees on the United States Judiciary, Energy and Commerce, and Commerce, Science and Transportation (and copy of transcripts – Exhibits U and V);
Aggregate IQ CEO’s and COO’s testimonies before the Canadian and the United Kingdom House of Commons (and copy of transcripts – Exhibits W and X);
Proceeding against Facebook before the United States Federal Trade Commission (and copy of a consent agreement – Exhibit Z; complaint – Exhibit AA; settlement order – Exhibit BB; and, press release – Exhibit CC);
Proceedings against Cambridge Analytica before the United States Federal Trade Commission (and copy of an opinion –Exhibit DD, a final order – Exhibit EE, and press release – Exhibit FF);
Investigation by the United Kingdom’s Information Commissioner’s Office on, amongst other things, the relationship between Facebook, Cambridge Analytica and Aggregate IQ (and copy of its report – Exhibit GG, press releases – Exhibit HH and JJ, and report to Parliament – Exhibit II);
Inquiries into Facebook’s businesses by the Ireland Data Protection Commissioner (and copy of the summary of inquiries – Exhibit KK);
Investigation into Facebook by the Australian Information and Privacy Commissioner (and copy of a news release – Exhibit LL).
[49]
Facebook submits that the foreign regulatory investigations, opinions, complaints and settlement agreements found at Exhibits U, V and Z to LL are hearsay since Mr. Maguire has no personal knowledge of the information contained therein. In any event, they are irrelevant to the matter before the Court.
[50]
However, as rightfully stated by the Commissioner, Facebook has cited no guiding jurisprudence from this Court to suggest that such foreign proceedings should be struck from the record merely on the basis they are foreign proceedings and therefore irrelevant. The Commissioner submits that it is not relying on the foreign proceedings for the truth of their contents but merely to show a foreign track-record and to inform the relief sought.
[51]
In my view, this is not a hearsay purpose and the application judge can determine whether the existence of the foreign proceedings actually informs the relief sought. I note Justice Martineau’s analysis in Thibodeau, above, where he found that the applicant should be allowed to adduce news articles to show a history of repeated breaches of the Official Languages Act, RSC 1985, c 31 (4th Supp) since it provides useful context for the Court (at paras 12-18). A similar rationale can be applied here so that paragraph 58 and associated Exhibits Z to LL will be permitted as evidence.
[52]
As to Facebook CEO’s transcript, the OPC has already conceded that it will remove the irrelevant parts of the transcript. Therefore, paragraph 53 and Exhibits U and V are admissible subject to the OPC’s agreed edits.
[53]
As to paragraph 54, and Exhibits X and W, they refer to the testimonies by Aggregate IQ’s CEO and COO before the House of Commons Standing Committee on Access to Information, Privacy and Ethics and the COO’s testimony before the United Kingdom Digital, Culture, Media and Sport Committee. The Commissioner submits that he is not adducing these testimonies for the truth of their contents but rather for their existence and the fact “that the matters in that testimony attracted the concern of law-makers, as part of the narrative of events surrounding the OPC’s investigation”
.
[54]
Facebook submits that the transcripts are not relevant since they relate to Cambridge Analytica as opposed to Facebook’s compliance with PIPEDA. In my view, Facebook’s conceptualization of relevance is too narrow. The role of Cambridge Analytica is not obviously irrelevant to Facebook’s compliance with PIPEDA since the data leaks associated with Cambridge Analytica were an inciting event for the OPC’s investigation. In sum, paragraph 54 and Exhibits W and X will be admitted for non-hearsay purposes.
(9)
Paragraphs 81-83, 85, 160-161 and Exhibits VVV and XXX
[55]
These paragraphs and exhibits concern the exchanges between Mr. Maguire and counsel for Facebook regarding Facebook’s compliance with the OPC’s Preliminary Report. Facebook mainly argues that these statements and exhibits are covered by settlement privilege.
[56]
There are three components of settlement privilege that were summarized by Justice Martineau in Thibodeau (at para 34): 1) A litigious dispute must be in existence or within contemplation; 2) the communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed; and, 3) the purpose of the communication must be to attempt to effect a settlement.
[57]
The Commissioner submits that these requirements are not met with respect to Exhibit VVV, a letter from Mr. Maguire to Facebook setting out recommendations to bring Facebook into compliance. The Commissioner submits that this document was not sent in contemplation of a litigious dispute because it was sent during the course of a regulatory investigation; it was not sent with the intention that it would be confidential considering the bulk of the letter was incorporated into the OPC’s final Report of Findings; and, there was no hint of compromise or negotiation expressed in that letter.
[58]
I agree with the Commissioner. This letter was sent in contemplation of a regulatory investigation that would produce a non-binding Report of Findings. The ability for either the complainant or the Commissioner to subsequently bring an application for a de novo review of the evidence before the Federal Court does not mean that the investigatory interactions between the Commissioner and Facebook were in contemplation of a litigious dispute. The parties were not, at that time, involved in a dispute that may require resolution by the Courts. The OPC’s investigations do not inherently involve Courts nor are they litigious in nature (see also Sputek v The Queen, 2010 TCC 540 at para 32). They are fact-finding inquiries.
[59]
In any event, I also agree that the letter was not relied on as evidence of liability so it may be exempted from the settlement privilege bar (Unilin Beheer BV v Triforest Inc, 2017 FC 76 at para 27). Its role in Mr. Maguire’s affidavit was as part of the summary of the OPC’s preliminary findings and Facebook’s response, something that involved Mr. Maguire given his position as Director of the PIPEDA Compliance Directorate. Therefore, Exhibit VVV is admissible.
[60]
As to Exhibit XXX, this letter was sent to Facebook from the OPC expressing the OPC’s dissatisfaction with Facebook’s response to its recommendations and stating that the OPC would proceed to finalizing its Report of Findings. I note here that this letter does not invite negotiation or concession. In fact, it is the exact opposite; it appears to end the OPC’s dialogue with Facebook. In Thibodeau, Justice Martineau found that a similar communication was not caught by settlement privilege (at para 36). I find that Exhibit XXX is admissible evidence.
[61]
For the same reasons – that the communications described occurred within an investigatory, fact-finding mission and that, in any event, they are used as background narrative rather than to suggest Facebook’s liability – paragraphs 81-83, 85 and 160-161 are also admissible.
(10)
Paragraph 86
[62]
In this paragraph, Mr. Maguire simply states that, as the Director of the OPC’s PIPEDA Compliance Directorate, he agrees with the findings and recommendations made by the OPC in the Report of Findings (Exhibit YYY).
[63]
Facebook argues this is inadmissible opinion, argument, legal conclusion, and not even relevant evidence.
[64]
I agree that paragraph 86 is undoubtedly Mr. Maguire’s opinion. However, in this context, it is somewhat insignificant opinion. It is not surprising that Mr. Maguire would agree with the Report of Findings given his position as Director of the PIPEDA Compliance Directorate in the OPC. The applications judge can easily choose to ignore Mr. Maguire’s opinion in the course of the de novo review of the evidence. I allow this paragraph to remain in the affidavit.
(11)
Paragraphs 90 to 159
[65]
Facebook moves to strike the entirety of Mr. Maguire’s affidavit from paragraph 90 until the end.
[66]
These paragraphs narrate the OPC’s investigation into Facebook, Facebook practices that were under investigation, exchanges between Facebook and the OPC, and the OPC’s position. In my view, these allegations raise very little arguable issues. The OPC’s investigation, Facebook’s activities under investigation as well as Facebook’s responses to the OPC’s investigation all fall within the knowledge of Mr. Maguire, who would have overseen the investigation in his capacity as the Director of the PIPEDA Compliance Directorate. When Mr. Maguire refers to representations made by Facebook or to Facebook policies and practices, I do not read these paragraphs as inadmissible hearsay since a) Mr. Maguire would have knowledge of how Facebook operates given the investigation and b) Facebook can easily adduce evidence regarding its own practices (see Thibodeau at para 22).
[67]
I acknowledge that within paragraphs 90-159, there are some paragraphs that read less like a narrative summary of the OPC’s investigation and more like the OPC’s position. However, in my view, providing a narrative summary of the OPC’s investigation will include a summary of what the OPC concluded / determined regarding Facebook’s activities. There is therefore an overlap between background and the merits of the application. However, I do not think Mr. Maguire’s adoption or summary of the OPC’s position veers into advocacy (see Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 116 at paras 33-37). After all, the Commissioner has readily acknowledged that he bears the burden of proving the allegations against Facebook on this application. Generally speaking, there is no prejudice to Facebook in having Mr. Maguire repeat the OPC’s positions in his affidavit.
[68]
Paragraphs 120-121 are somewhat different because therein Mr. Maguire expresses his own opinion on the effectiveness of data protection models. However, I accept the Commissioner’s response that effective data protection models fall within Mr. Maguire’s knowledge given his position. Ultimately, Mr. Maguire’s own opinion blends into his narrative summary of the investigation found within paragraphs 90-159. It is not distracting or significant, and the hearing judge will eventually weigh it.
[69]
On a more specific note, I agree with Facebook that paragraph 97 is inadmissible. This paragraph relies on Exhibits L, N and O previously found to be inadmissible because they are newspaper articles that Mr. Maguire appeared to rely upon for the truth of their contents. He does the same in paragraph 97, relying on the articles as evidence of Facebook’s evolving business model. Paragraph 97 is therefore speculative and relies upon impermissible hearsay. It will be struck.
(12)
Headings
[70]
Mr. Maguire’s affidavit is divided in sections identified by headings and sub-headings. Facebook asserts that 13 of those contain inadmissible evidence.
[71]
Even if some of these headings/sub-headings are biased or even tendentious, I see no reason why they should be struck. They serve an organizational purpose in Mr. Maguire’s affidavit. The headings organize the affidavit by subject matter and help the reader follow the chronology. Even if characterized as Mr. Maguire’s opinion, they are somewhat insignificant to the proceeding. The hearing judge will be fully capable of ignoring insignificant detail or “gloss”
and the hearing judge will hold the Commissioner to its burden to prove its allegations on the evidentiary record before the Court (Coldwater at para 22). Those headings and sub-headings will stay.
IV.
The Commissioner’s motion to strike (T-473-20)
[72]
Now turning to the second motion before the Court, whereby the Commissioner moves to strike the Facebook Application in its entirety. The Commissioner argues that Facebook has an alternative to judicial review through the PIPEDA Application before this Court (T-190-20), and that the Facebook Application is out of time, having been filed nearly a year after the Commissioner issued his Report of Findings.
[73]
Facebook responds to these issues and additionally challenges the weight that should be given to the affidavit of Ephry Mudryk, law clerk in the firm of Stockwoods LLP, filed on behalf of the Commissioner. I will address this challenge as a preliminary issue after having summarized the law relevant to this motion.
A.
The law
[74]
In Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 [JP Morgan], Justice David Stratas summarized the law on motions to strike out applications for judicial review:
[47] The Court will strike a notice of application for judicial review only where it is “so clearly improper as to be bereft of any possibility of success”: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at page 600 (C.A.). There must be a “show stopper” or a “knockout punch” – an obvious, fatal flaw striking at the root of this Court’s power to entertain the application: Rahman v. Public Service Labour Relations Board, 2013 FCA 117 at paragraph 7; Donaldson v. Western Grain Storage By-Products, 2012 FCA 286 at paragraph 6; cf.. Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.
[48] There are two justifications for such a high threshold. First, the Federal Courts’ jurisdiction to strike a notice of application is founded not in the Rules but in the Courts’ plenary jurisdiction to restrain the misuse or abuse of courts’ processes: David Bull, supra at page 600; Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50. Second, applications for judicial review must be brought quickly and must proceed “without delay” and “in a summary way”: Federal Courts Act, supra, subsection 18.1(2) and section 18.4. An unmeritorious motion – one that raises matters that should be advanced at the hearing on the merits – frustrates that objective.
[75]
Therefore, I have to determine whether Facebook’s Application for Judicial Review is bereft of any possibility of success. If so, it may be struck.
B.
The affidavit of Ephry Mudryk
[76]
Facebook challenges the affidavit of Ephry Mudryk on the basis that the Commissioner’s reliance on affidavit evidence on a motion to strike is improper. As stated by the Federal Court of Appeal in JP Morgan at paragraph 52, a flaw that can only be shown with the assistance of an affidavit is not obvious. Facebook also states that the content of the Mudryk affidavit is not relevant; it merely sets out a timeline of the OPC’s investigation and issuance of the Report of Findings. This is unnecessary considering Facebook acknowledges that if the 30-day time limit applies to its Application for Judicial Review, it was not respected and therefore Facebook has sought an extension of time. To the extent that the OPC intends to rely on the affidavit to establish Facebook’s motivations, Facebook submits that that is also improper.
[77]
One established exception to the rule against affidavits on motions to strike is where, “a document is referred to and incorporated by reference in a notice of application. A party may file an affidavit merely appending the document, nothing more, for the assistance of the Court”
(JP Morgan at para 54).
[78]
This is partly the case with the Mudryk affidavit. The following documents are properly filed in support of, and referenced in the affidavit:
Para 4 of the Mudryk affidavit refers to Exhibit B, which is the OPC’s Report of Findings also referenced in Facebook’s own Notice of Application;
Para 6 of the Mudryk affidavit refers to Exhibit D, which is the Notice of Application in the PIPEDA Application.
[79]
There is no editorializing in either of these paragraphs. The paragraphs merely refer to the Exhibits with brief, factual detail. I am therefore of the view that Exhibits B and D and their associated paragraphs 4 and 6 are admissible.
[80]
For the remainder of the Mudryk’s affidavit, the Commissioner argues that it provides a “basic and necessary”
factual basis for his motion. However, and as stated by Justice Stratas in JP Morgan, an applicant’s Notice of Application can be taken as true on a motion to strike and therefore an affidavit setting out facts is unnecessary (at para 52). And, while the Commissioner argues that affidavits have been admitted in other cases where the moving parties argued that the basis for the motion was an adequate alternative remedy, this is unnecessary in the present case. The PIPEDA Application is already before the Court and it is jointly case-managed with the Facebook Application. In addition, the PIPEDA Application is admissible as Exhibit D to Mudryk’s affidavit. Both Applications provide sufficient factual background for the Commissioner to make his point on his motion to strike. The remainder of the Mudryk affidavit is therefore improper and unnecessary. It will be ignored.
C.
Alternative to Judicial Review
[81]
The Commissioner submits that Facebook’s Notice of Application is barred by section 18.5 of the Federal Courts Act, RSC 1985, c F-7 which states:
18.5 Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal to the Federal Court, the Federal Court of Appeal, the Supreme Court of Canada, the Court Martial Appeal Court, the Tax Court of Canada, the Governor in Council or the Treasury Board from a decision or an order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.
[82]
The Commissioner adds that even if section 18.5 is not directly applicable in this matter, it informs the Court’s discretion to refuse judicial review on the basis that the PIPEDA Application is an adequate alternative remedy. Judicial review is discretionary and therefore Courts will generally decline to grant relief if there is an alternative remedy (Canadian Pacific Ltd v Matsqui Indian Band, [1995] 1 S.C.R. 3 at 29).
[83]
There are various useful factors to consider when determining whether an adequate remedy exists (Strickland v Canada (Attorney General), 2015 SCC 37 at para 42 [Strickland]; Harelkin v University of Regina, [1979] 2 S.C.R. 561 at 588 [Harelkin]). Presenting one’s case at a de novo hearing is one factor (Harelkin at 590-592). It has even been qualified as a powerful factor by the Federal Court of Appeal (Buenaventura v Telecommunications Workers Union, 2012 FCA 69 at para 30 [Buenaventura]; Rogers Communications Canada Inc v Metro Cable TV Maintenance, 2017 FCA 127 at para 17).
[84]
According to the Commissioner, Facebook can make its arguments about the OPC’s investigation, process and report in the PIPEDA Application. The Commissioner points to the fact that this Court has already held that the statutory process found in PIPEDA was an adequate alternative remedy to judicial review. In Kniss v Canada (Privacy Commissioner), 2013 FC 31 [Kniss], an applicant attempted to challenge a decision by the OPC through judicial review and this Court held that the applicant had an adequate alternative process through the de novo process under section 14 of PIPEDA. The Commissioner submits that the reasoning found in Kniss applies here as well even though the Privacy Commissioner commenced an application under subsection 15(a) as opposed to section 14 of PIPEDA.
[85]
Finally, the Commissioner asserts that this application may cause inconsistent findings, which are not in the interests of justice.
[86]
I disagree with the Commissioner that section 18.5 of the Federal Courts Act applies to the Facebook Application. PIPEDA grants recourse to the Commissioner and the complainant, but not to the organisation under investigation. PIPEDA does not provide Facebook any recourse to review the OPC’s investigation or recommendations.
[87]
As to the concept of “adequate alternative remedies”
, it was plainly explained by Justice Stratas in JP Morgan:
[86] Administrative law cases and textbooks express this principle in many different ways: adequate alternative forum, the doctrine of exhaustion, the doctrine against fragmentation or bifurcation of proceedings, the rule against interlocutory judicial reviews and the rule against premature judicial reviews. They all address the same idea: someone has rushed off to a judicial review court when adequate, effective recourse exists elsewhere or at another time.
[88]
Factors to determine whether an alternative remedy exist include:
[42] … the convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources; and cost
(Strickland at para 42)
[89]
Some of these factors clearly support the Commissioner’s position that the PIPEDA application is an adequate alternative remedy. The application under subsection 15(a) of PIPEDA is a de novo proceeding before a new decision maker concerning the alleged breach of PIPEDA (see Kniss at para 28). In such a situation “it could be said that the burden of the initial decision is small”
(Buenaventura at para 30).
[90]
Concepts like the economic use of judicial resources, efficiency, and the principle against bifurcating proceedings also suggest that the PIPEDA Application is an adequate alternative remedy. The Commissioner rightfully points to the fact that the existence of this application in parallel to the PIPEDA Application has the potential to create inconsistent findings; both applicants cannot be successful without creating inconsistency.
[91]
However, not all of the factors support the Commissioner’s position. In my view, the nature of the subsection 15(a) PIPEDA Application and the remedies available do not support the Commissioner’s position. The Commissioner submits that Facebook will have broad participatory rights and therefore it can raise all of its objections to the Commissioner’s claims. Yet, in Kniss at para 43, Justice Noël found that a judicial review may have been appropriate had the applicant made arguments related to procedural fairness or bias which could not be remedied using section 14 (or arguably subsection 15(a)) of PIPEDA. Remedies that address the OPC’s potential wrongdoing are not found under section 16 of PIPEDA.
[92]
In its Application for Judicial Review, Facebook seeks a declaration that the OPC’s investigation lacked procedural fairness. As a result, there is at least a debatable issue whether there is an adequate alternative remedy for Facebook in the PIPEDA Application. As a result, I am of the view that the Facebook Application is not clearly so bereft of success that a motion to strike should be granted on this ground.
D.
Delay in bringing this Application for Judicial Review
[93]
The Commissioner submits Facebook brought its Notice of Application well outside of the 30-day time limitation set out in subsection 18.1(2) of the Federal Courts Act, without setting out the facts that would support granting an extension of time.
[94]
The test for granting an extension of time is whether: a) the applicant had a continuing intention to pursue the application; b) there is some potential merit to the application; c) the respondent was prejudiced by the delay; and d) the applicant had a reasonable explanation for the delay (Canada (Attorney General) v Larkman, 2012 FCA 204 at para 61).
[95]
The Commissioner argues that Facebook’s Notice of Application does not disclose Facebook’s continuing intention to file its application, which it filed one year after the OPC issued its Report of Findings. Second, the availability of an alternative remedy means this application lacks potential merits. Third, it is not in the interests of justice for Facebook to bring this application because the PIPEDA Application has implications for Canadian privacy interests and it is in the interests of justice for the PIPEDA Application to move forward. Finally, Facebook has no reasonable explanation for the delay; it merely states that the application was necessitated by the PIPEDA Application and Facebook’s change of counsel, but neither justification is persuasive.
[96]
Facebook argues that the 30-day time limitation does not apply because it challenges the OPC’s course of conduct as opposed to a decision or order. In the alternative, even if the limitation does apply, Facebook’s request for an extension of time is not so clearly improper so as to be bereft of success and it should not be considered on a motion to strike. The test for an extension of time requires consideration of the merits of Facebook’s application, which cannot be done during a motion to strike. Further still, the interests of justice are the overarching consideration on a request for an extension of time (Larkman at para 62), and this is a balancing exercise that should not be done on a motion to strike.
[97]
Regardless of whether the 30-day time limitation applies in this matter, jurisprudence supports that the effect of a time limitation on an application should be argued at the hearing of the application on the merits and not on a motion to strike. As stated by Justice Barnes in John McKellar Charitable Foundation v Canada (Revenue Agency), 2006 FC 733:
[16] The question remains as to whether I should dismiss the underlying application because of the ostensible failure by McKellar to comply with the 30 day filing requirement or to obtain an extension pursuant to section 18.1 (2). On this issue, I am assisted by the thoughtful decision by Madam Justice Eleanor Dawson in Hamilton-Wentworth (Regional Municipality) v. Canada(Minister of the Environment), [2000] F.C.J. No. 440. There Madam Justice Dawson carefully considered the David Bull decision in the context of the same filing deadline applicable to this case and held at paragraphs 39 and 40:
I note that even in actions where, as the Court of Appeal noted in David Bull Laboratories, supra, striking out is much more feasible, a limitation defence is not sufficient ground to strike out a statement of claim, but rather is a defence to be raised in a statement of defence. By analogy, where a proceeding is commenced by application, any issue of application of a time bar ought, in the usual case, to be argued at the hearing of the application, and not on a motion to strike.
That is not to say that in no case could an application be struck for being commenced out of time, but it would, in my view, be only in an exceptional case.
I agree with Justice Dawson and I do not see anything about the circumstances of this case which would render it exceptional or justify a departure from the usual approach
.
[98]
However, in fairness to the Commissioner, I acknowledge that Facebook has made minimalist arguments in its Notice of Application for why it should be granted an extension, one of which being that its change of counsel is a justification for the delay. Generally speaking, the actions or the failures of counsel to act are not reasonable justifications for delay (Kiflom v Canada (Citizenship and Immigration), 2020 FC 205 at para 37). Even more so in the case of sophisticated litigants like Facebook. Yet ultimately, Facebook’s request for an extension necessitates a balancing exercise and a consideration of the merits of its claim that do not seem proper in the forum of a motion to strike. This leads me to conclude that Facebook’s arguments are not so bereft of any chance of success to justify striking out its application at this stage.
V.
Conclusion
A.
On Facebook’s motion to strike
[99]
The majority of Facebook’s arguments have not persuaded me that the Commissioner’s affidavit evidence is inadmissible. However, I agree that the following paragraphs and Exhibits are inadmissible hearsay evidence and should be struck: paragraphs 30-32, 50, and 97; and, Exhibits I, J, K, L, N, O, P, and S. The vast majority of the affidavit will remain.
B.
On the Commissioner’s motion to strike
[100]
For the reasons set out above, the Commissioner has not convinced me that there was a “show stopper”
or a “knockout punch”
– an obvious, fatal flaw striking at the root of this Court’s power to entertain the Facebook Application. Both arguments raised by the Commissioner in support of his motion are better left to the judge hearing the Facebook Application.
C.
On costs
[101]
Considering that both parties have been mainly unsuccessful, I will exercise my discretion and not award costs on either motion.
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