03/02/2020 2017 FC 114 (CanLII) | CanLII [86] Paragraph 16(a) of PIPEDA does authorize this Court to grant a corrective order requiring the respondent to correct his practices to comply with sections 5 to 10 of that legislation. Having reviewed the relevant authorities and having found that the underlying dispute is within the jurisdiction of this Court, I do not find that there is either a jurisdictional or a practical bar to granting a corrective order with extraterritorial effects. (2) Declaratory relief [87] The OPCC submits that declaratory relief is available to the applicant under section 16 of PIPEDA as the remedies provided are explicitly “in addition to any other remedies [this Court] may give.” [88] A declaration that the respondent has contravened PIPEDA, combined with a corrective order, would allow the applicant and other complainants to submit a request to Google or other search engines to remove links to decisions on Globe24h.com from their search results. Google is the principal search engine involved and its policy allows users to submit this request where a court has declared the content of the website to be unlawful. Notably, Google’s policy on legal notices states that completing and submitting the Google form online does not guarantee that any action will be taken on the request. Nonetheless, it remains an avenue open to the applicant and others similarly affected. The OPCC contends that this may be the most practical and effective way of mitigating the harm caused to individuals since the respondent is located in Romania with no known assets. [89] At the hearing on November 9, 2016, I requested that the OPCC provide additional authorities dealing specifically with the authority of the Federal Court to issue systemic remedies (i.e., remedies that go beyond the circumstances of an individual applicant) in appropriate cases. [90] In their post-hearing submissions, the OPCC noted that the wording of section 16 of PIPEDA empowers the Court to craft remedies which address systemic non-compliance. They argued that such remedies will necessarily go beyond, and be of benefit to, more than just the individual applicant since their aim will be to correct how an organization collects, uses and discloses personal information generally. [91] In Englander v Telus Communications Inc, 2004 FCA 387, [2004] FCJ No 1935 [Englander], the Federal Court of Appeal found that the respondent, Telus Communications Inc, had infringed section 5 of PIPEDA. The Court noted that the applicant, Mr. Englander had not been personally affected by the respondent’s breach. However, because an ongoing contravention of PIPEDA had been made out, the Court was prepared to issue a “futureoriented” order requiring the respondent to change its practices so that they complied with PIPEDA: Englander, above, at para 90. [92] In Donaghy v Scotia Capital Inc, 2007 FC 224, [2007] FCJ No 310 [Donaghy], Justice Strayer, pursuant to paragraph 16(a) of PIPEDA, ordered a bank to clarify how it used a staff plan, which purported to record hours worked, including overtime, for staff who were not entitled to overtime: Donaghy, above, at paras 15 and 18. Notably, in that case, the applicant was no longer an employee of the bank and would not have benefited from the corrective order granted by the Court. [93] Moreover, given PIPEDA’s quasi-constitutional status, the OPCC contends that guidance can be found in cases dealing with remedies that can be granted under the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c 11 (UK), RSC, 1985, Appendix II, No 44 [the Charter]. [94] In Canada (Attorney General) v Jodhan, 2012 FCA 161, [2012] FCJ No 614 [Jodhan], the issue was the scope of the Charter remedy that could be accorded after it was found that the federal government had failed to make government department and agency websites accessible to individuals with visual impairments. The Federal Court had found that there was a “system wide failure” on behalf of the government to make its websites accessible and therefore declared that it had a constitutional obligation to remedy the defect. On appeal, the Attorney General argued that the remedy should have been confined to the entities named in the Notice of Application. The Federal Court of Appeal rejected this argument, noting that systemic remedies were entirely appropriate in cases where a systemic violation had been made out: Jodhan, above, at paras 81-83 and 90. https://www.canlii.org/en/ca/fct/doc/2017/2017fc114/2017fc114.html 14/21