Canada: Significant Privacy Law Decision From The Alberta Court Of Appeal

Last Updated: May 5 2011
Article by Geoff R. Hall and Kara L. Smyth

Most Read Contributor in Canada, September 2018

The Alberta Court of Appeal recently overturned a decision of the Alberta Privacy Commissioner resulting in a significant privacy law decision for businesses in Alberta and B.C. The Court endorsed a deferential approach to businesses and their adoption of reasonable policies towards the collection of personal information. The majority ruled that the collection of personal information must only be "reasonable." A business need not show that it adopted the "best" or "least intrusive" approaches." Please click here for a quick summary of the decision.


In a split decision released March 29, 2011, the Alberta Court of Appeal overturned a decision of the Alberta Privacy Commissioner: Leon's Furniture Limited v. Alberta (Information and Privacy Commissioner), 2011 ABCA 94. Geoff Hall and Kara Smyth of McCarthy Tétrault LLP acted as counsel for the successful appellant Leon's.

Leon's has a policy of recording driver's licence and licence plate information where a customer takes delivery of merchandise some time after the date of purchase. The purpose of doing so is to have the information available to give to the police in the event of subsequent allegations of theft or fraud, such as when a fraudster claiming to be the purchaser picks up merchandise. The information is kept in a secure location and is used for no other purpose than to assist police if there are allegations of theft or fraud.

The Privacy Commissioner had held Leon's policy unlawful under Alberta's Personal Information Protection Act ("PIPA"), even going so far as to hold that recording licence plate numbers was a breach of the statute. The Privacy Commissioner's decision was initially upheld on judicial review by the Alberta Court of Queen's Bench. In a two-to-one decision, the Alberta Court of Appeal reversed.

In the Court of Appeal, there was significant disagreement between the majority and the dissent over the proper interpretation of PIPA. The majority accepted Leon's argument that there must be a balance between (i) the right of an individual to have his or her personal information protected; and (ii) the need of organizations to collect, use or disclose personal information for purposes that are reasonable.

Writing for the majority, Justice Slatter emphasized that neither of the two competing values is paramount. At paragraph 34, he stated:

The statute does not give predominance to either of the two competing values, and any interpretation which holds that one must always prevail over the other is likely to be unreasonable. A balancing is called for. That balancing is not fully implemented by the other provisions of the Act. [emphasis added]

The majority acknowledged not only the rights of the retailer organization but the larger public interest in preventing fraud:

But their admitted importance [the importance of privacy rights] does not mean that privacy rights must predominate over all other societal needs, values and interests. Because the customer's interests are important does not mean that the retailer's are not. Our society is complex and increasingly information based, and many organizations, businesses and individuals must use personal information for legitimate reasons on a daily basis. (para. 35)

The majority agreed with the Privacy Commissioner's finding that driver's licences are "personal information" under PPIA, yet cautioned against placing blanket restrictions on their use:

Driver's licences are not just proof that the holder is authorized to drive; the average Albertan uses his or her driver's licence far more frequently to prove identity than to prove the right to drive....

In determining what use of driver's licence numbers would be found to be 'appropriate in the circumstances' by 'reasonable persons,' one must therefore have regard to the important place that driver's licences play as a universal form of identification...

While protecting Albertans from invasions of privacy, intrusive marketing practices and identity theft are laudable objectives, it is unreasonable to place restrictions on the use of driver's licences that seriously undermine their usefulness as forms of identification. Section 3 of the Act specifically recognizes that individuals and organizations all have legitimate reasons to use personal information in this way. (paras. 40-41)

In assessing the reasonableness of the collection of licence plate numbers, the majority found that licence plate numbers do not constitute "personal information ... about an individual" under the Act. The Court stated that a vehicle licence is "linked to a vehicle, not a person" (para 49) and "[i]t makes no sense to effectively order, as did the adjudicator, that everyone in the world can write down the customer's licence plate number, except the appellant." (para. 50)

In assessing the reasonableness of the Privacy Commissioner's decision, the Court found that the Privacy Commissioner erred by concluding that an organization must implement the least intrusive policies. Rather, the Court found that an organization must implement a reasonable approach towards the collection of personal information. The Court stated:

...the reasonableness of the adjudicator's decision is undermined by her failure to recognize that the appellant needed to show only that its policies were 'reasonable,' not that they were the 'best' or 'least intrusive' approaches. Sections 3 and 11 do not create any test of 'paramountcy'; the test is whether the use being made of the information is 'reasonably necessary.' That standard does not require the organization to defer in all instances to the interests of individual privacy. The respondent [Privacy Commissioner] 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.

Finally, the Court concluded that the Privacy Commissioner's conclusion that Leon's policy on the delivery of goods to third parties "was unreasonable is itself unreasonable":

The adjudicator's [Privacy Commissioner] approach was influenced by the view that privacy rights prevail in all circumstances over the legitimate need to use information. It was also unreasonable for the adjudicator to conclude that the appellant's policy was unreasonable, because the adjudicator thought that there were other reasonable ways that the business could be operated. (para. 65)

This decision is obviously a very important win for businesses, in particular retail businesses, in Alberta. It is also important in British Columbia, which has privacy legislation similar to Alberta's. It may have limited relevance outside Alberta and B.C., because the majority's decision turned on a provision of the Alberta statute which is worded differently from the federal privacy legislation (PIPEDA). Nonetheless, it seems that even outside Alberta and B.C., this is an important decision that our clients will want to make full use of in limiting the excesses of privacy commissioners.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions