Wild Rose Privacy

Canadian courts are increasingly taking up the subject of privacy and two judicial decisions issued this year in Alberta, Canada’s Wild Rose Country, do make you wonder how privacy law will evolve in this country.

The first case involves, of all things, license plates. When a person  – other than the purchaser – arrived at the loading dock to collect a purchase at Leon’s Furniture, the company’s practice  was to collect driver’s license and vehicle plate numbers.

In addressing a complaint about this practice under the Alberta’s Personal Information Protection Act (“PIPA”), the OIPC adjudicator determined that recording the driver’s licence and licence plate numbers went beyond what was necessary for preventing fraudulent pickup. It was reasonable only to record the name and address of the person picking up the furniture, and to examine the identification produced to verify the identity of the person, but that it was not reasonable to record the number of the identification being used. Leon’s subsequent application for judicial review was dismissed.

Things got interesting when the case got to the Alberta Court of Appeal.

In writing for the majority in Leon’s Furniture Limited v. Alberta (Information and Privacy Commissioner), Justice Slatter held that license plate numbers are not personal information and the OIPC erred in finding that that Leon’s failed to comply with the standard for collecting personal information under Alberta’s PIPA .

The essential rationale for the first finding is that there is no reasonable expectation of privacy in a license plate number because it is displayed openly in public. This importation of a “reasonable expectation of privacy” test into what constitutes personal information – usually a defined term in statutes with no reference to expectations – is a new and intriguing development.

The second — and perhaps the most important — aspect is the conclusion that the OPIC was wrong to find that Leon’s business process was not “reasonable”:

“…The respondent [OIPC] is not empowered to direct an organization to change the way it does business, just because the respondent thinks he has identified a better way. So long as the business is being conducted reasonably, it does not matter that there might also be other reasonable ways of conducting the business.”

It seems that it’s one thing for Privacy Commissioners to suggest best practice; quite another to find that a practice is wrong if it is not patently unreasonable.

The second case, United Food and Commercial Workers, Local 401 v. Alberta (Information and Privacy Commissioner), involves videotaping at a picket line by a union and the applicability of PIPA to that activity.  In short, can employers and unions videotape picket line activity without one party or the other invoking privacy claims? Since no consent was going to be forthcoming, the focus shifted to two exceptions to the “no collection without consent” rule: journalistic purpose and publicly available information. Neither fit well in this fact situation.

A plain reading of the PIPA Regulation would suggest information from a public protest or picket line does not fit within the very narrow definition of “publicly available” and no one in their right mind would (or did) suggest that the information collection was for journalistic purposes. The Court essentially said as much.

PIPA, unlike its BC counterpart, has no exception for personal information collected at a public event, including a public, political event. It appears this was too much for the Court to bear and it found that PIPA violates freedom of expression under Section 2(b) of the Charter of Rights and Freedoms in a manner not justified by Section 1 of the Charter.

Of particular interest is the Court’s finding that PIPA is regulatory and not human rights legislation. As noted by the Court, “[h]uman rights legislation” is given a liberal and purposive interpretation in Canada. Protected rights receive a broad interpretation, while exceptions and defences are narrowly construed.” Apparently privacy legislation is not to have the same treatment. This perspective varies from the approach taken by the federal Privacy Commissioner and it will be interesting to see if this decision colours future judicial interpretation of personal information protection statutes in Canada.

If anything, Alberta’s courts have given those interested in Canadian privacy law further things to ponder.

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