Federal Court - References. Google LLC v. Canada (Privacy Commissioner)
In Google LLC v. Canada (Privacy Commissioner) (Fed CA, 2023) the Federal Court of Appeal considered the suitability of considering Charter issues in a Federal Court reference, here in the course of a PIPEDA Google appeal:
D. Google’s attempts to expand the reference. Google LLC v. Canada (Privacy Commissioner)
 Google brought a motion for an order specifying that the reference would include the Charter issue, which it characterized as “inextricably intertwined” with the questions as framed, and granting it leave to file a record on the issue. In the alternative, it sought an order striking out the application for a reference.
 Prothonotary (her then title) Tabib dismissed the motion (Reference Re Subsection 18.3(1) of the Federal Courts Act, 2019 FC 261). She held it to be clear that the federal board, commission or other tribunal making a reference has the sole prerogative to determine its scope, and that neither the Court nor a party to a reference is entitled to add to or modify the questions referred, whether or not the addition or modification relates to constitutional issues. However, she stated, it remained open to Google to argue on the merits of the reference that the Court could not or should not answer the reference questions as framed without considering the constitutional issues, and that if the Court agreed it could decline to answer the questions. She also concluded that on the record before her, there was no basis on which the application for a reference should be struck out.
 Google appealed the prothonotary’s order by way of motion to the Federal Court. The motion was heard by Gagné A.C.J. (who later became the reference judge). She dismissed the motion (Reference Re Subsection 18.3(1) of the Federal Courts Act, 2019 FC 957).
 In doing so, she agreed with the prothonotary that the discretion as to how reference questions are framed belongs exclusively to the federal board, commission, or other tribunal making the reference, and that entitlement is unaffected by whether or not the issue a party seeks to raise is a constitutional issue. The prothonotary was also right, she concluded, to refuse to accept Google’s argument that the issue of constitutionality was “inextricably intertwined” with the reference questions.
 The motion judge proceeded to reject Google’s submission that determining the constitutionality of PIPEDA must be the first step in determining the jurisdiction it confers. This submission, she stated, would require a court to assess the constitutionality of a statute before it knows whether the statute applies and, if it does, how it applies and what impact it has on a Charter-protected right. She went on to state that Google would have another opportunity to argue, at the merits stage, that the reference questions are improper and should not be answered. Finally, the motion judge held to be without merit Google’s alternative argument that the application for a reference should be struck out because the reference questions could not be answered.
IV. The decision on the reference
 Before embarking on her analysis of the two questions referred by the Commissioner (reproduced above at paragraph 28), the reference judge noted that Google had proposed a third question, which she set out as follows:
Should this Court simply decline to answer the Reference questions or dismiss the Reference because the questions cannot/should not be answered without addressing the constitutional issues and/or because there is an inadequate evidentiary record before this Court? This question, she stated, contained a contradiction. Courts should refrain from addressing constitutional questions in the absence of an adequate evidentiary record and, as she had concluded in dismissing the appeal from the prothonotary’s order, these questions were better left for the Commissioner, who with the benefit of a complete evidentiary record would be in a position to assess whether PIPEDA can, without violating Charter values, apply as the complainant seeks to have it apply. Therefore, she stated, she would answer only the two questions the Commissioner had referred.
 As the Attorney General points out, determining whether legislation establishing an administrative scheme is constitutional in its application to a particular activity is ordinarily a two-step process; see, for example, Deacon v. Canada (Attorney General), 2006 FCA 265 at paras. 1, 26. The first step entails determining whether the legislation applies to the activity in question—in other words, whether the administrative agency has jurisdiction under its constating statute. If the legislation applies, it is necessary to proceed to the second step, which consists of assessing whether in that application the legislation contravenes the Charter. If the legislation does not apply, so that the administrative agency has no jurisdiction, there is no need to move to the second step because the constitutional issue does not arise.
 The Supreme Court’s decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 at para. 17, provides a further illustration, in a case also involving privacy legislation (that of Alberta). There the Supreme Court first considered whether the collection, use, and disclosure of personal information that was in issue was subject to the legislation, or whether any exemptions applied. It then, having accepted the adjudicator’s finding that no exemptions applied, went on to conclude that a breach of freedom of expression was made out.
 By contrast, in State Farm Mutual Automobile Insurance Co. v. Privacy Commissioner of Canada, 2010 FC 736 at paras. 13, 17, 106-107, 119, the Federal Court, having concluded at the first step that on a proper construction the activity in question was not commercial activity subject to PIPEDA, and was therefore not subject to the statute and beyond the jurisdiction of the Commissioner, declined to proceed to the second step and to consider the constitutionality of the legislation.
 In this case, the reference questions were intended and crafted to involve only the first step. That was a choice the Commissioner was entitled to make in the exercise of the discretion conferred by subsection 18.3(1) of the Federal Courts Act “to refer any question or issue of law, or jurisdiction or of practice and procedure to the Federal Court for hearing and determination” / “renvoyer devant la Cour fédéral pour audition et jugement toute question de droit, de competence ou de pratique et procedure”.
 If the reference judge had determined at the first step that the legislation does not apply to Google Search, it would not be necessary to proceed to the second step. But given the conclusion of the reference judge at the first step that PIPEDA does apply, the second question, that of constitutionality, remains open. Through what process it may ultimately be decided is not yet clear, though a de novo hearing under section 14 of PIPEDA, after the Commissioner has concluded his investigation and issued his report, is one obvious possibility. But it is apparent at a minimum that, as the reference judge observed, her conclusion at the first step does not decide the constitutional question.
In Google LLC v. Canada (Privacy Commissioner) (Fed CA, 2023) the Federal Court of Appeal considered the Federal Court Act's 'reference' provisions [FCA s. 18.3], here in an appeal of a PIPEDA Google reference:
C. The reference
 Before the complaint was filed, the Commissioner had begun to consider, and had initiated a public consultation on, the issue of online reputation, including whether, and if so, how, a “right to be forgotten” could apply in Canada. The “right to be forgotten” is a concept that has been the subject of discussion by academics, lawmakers, and legal professionals in Canada and around the world. At its essence, it is about whether individuals have a right to have publicly available private information about them removed from the internet. Its proponents often emphasize the privacy and autonomy interests that they say underlie and justify the right. However, the question whether there is a right to be forgotten is not before this Court in this appeal; the reference questions are far more limited.
 While the complaint was pending, the Commissioner published a draft position paper on online reputation. It expressed the view that PIPEDA applies to online search engines like Google Search, and in certain circumstances could require removal of links to content containing personal information. The Commissioner invited and received public comments on the paper, which remains in draft form.
 Subsection 18.3(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. authorizes a federal board, commission, or other tribunal to refer questions to the Federal Court:
18.3 (1) A federal board, commission or other tribunal may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Federal Court for hearing and determination. By rule 321(c) of the Federal Courts Rules, S.O.R./98-106, the notice of application commencing the reference is to set out the question (or questions) being referred.
18.3 (1) Les offices fédéraux peuvent, à tout stade de leurs procédures, renvoyer devant la Cour fédérale pour audition et jugement toute question de droit, de compétence ou de pratique et procédure.
 After considering Google’s position in response to the complaint and the public comments on the draft position paper, the Commissioner decided to refer two of the jurisdictional issues raised by Google to the Federal Court:
(1)Does Google, in the operation of its search engine service, collect, use or disclose personal information in the course of commercial activities within the meaning of paragraph 4(1)(a) of PIPEDA when it indexes web pages and presents search results in response to searches of an individual’s name? The Commissioner chose not to refer a third issue that Google had raised—whether any interpretation of PIPEDA that would prohibit Google from providing search results leading to journalistic content would contravene the freedom of expression guaranteed by section 2(b) of the Charter.
(2)Is the operation of Google’s search engine service excluded from the application of Part 1 of PIPEDA by virtue of paragraph 4(2)(c) of PIPEDA because it involves the collection, use, or disclosure of personal information for journalistic, artistic or literary purposes and for no other purpose?