As we noted in an earlier post, the Alberta Court of
Appeal overturned the Commissioner's ruling and stated that
Leon's Furniture Limited was justified in collecting
driver's licence and licence plate information from customers
picking up furniture. Leon's argued that the observance of such
policy was for fraud prevention and deterrence purposes only and
that it assisted police in any ensuing fraud investigations. The
Commissioner claimed that Leon's policy was a violation of
Alberta's Personal Information Protection
Act (PIPA or Act), as collection of the disputed
information was not "reasonable" under section 11 of the
Act and it constituted a "condition of supplying a product or
service" under section 7(2) of the Act. Both claims were
In deciding in favour of Leon's, the Alberta Court of Appeal
made a few notable findings:
The court recognized that the privacy statute identifies two
competing values, the right to protect information and the need to
use it – one does not trump the other and a balancing is
The "reasonableness" standard imposed under Section
11 of PIPA only requires organizations to collect personal
information to the extent it is reasonable for meeting the purposes
for which the information is collected, and "[i]t is not open
to the [Commissioner] to change 'reasonableness' to either
'necessity', 'minimal intrusive', or 'best
practices'. These are not interpretations that are available
given the plain wording of the statue."
The "reasonableness" standard does not require
business to defer, in all instances, its interest to that of an
individual's privacy interest. "[The Commissioner] is not
empowered to direct an organization to change the way it does
business, just because the [Commissioner] 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".
The Court of Appeal's decision is an important win for
private sector businesses, and needless to say, the Alberta Privacy
Commissioner Frank Work was dismayed with the SSC's dismissal
of its appeal. In his news release, the
Commissioner expressed his concern that the decision "could be
used to challenge what were thought to be reasonable, nationally
accepted limits on the collection of personal information by
private sector organizations. We are moving backwards."
Overall, the Court of Appeal's interpretation of the privacy
act is an important one for business in Alberta and B.C., which has
privacy legislation similar to PIPA. Although the privacy
legislations governing personal information differ across the
provinces, territories and federally, the message from Alberta may
translate into other jurisdictions to limit the Commissioner's
discretion. Whether this judgment alters the decisions of privacy
commissioners in future dealings with businesses remains to be
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.
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