On October 30, the Supreme Court of Canada granted the
Government of Alberta a six month extension to amend the
Personal Information Protection Act (Alberta)
("PIPA") before the Act is declared invalid. The
Supreme Court previously ruled in Alberta (Information and
Privacy Commissioner) v. United Food and Commercial Workers, Local
401 that PIPA infringed the right to freedom of expression
protected by section 2(b) of the Canadian Charter of Rights and
Freedoms because it unjustifiably restricted the ability to
collect, use, and disclose personal information for legitimate
labour relations purposes. Rather than strike down PIPA
immediately, the Supreme Court suspended its declaration for 12
months. That suspension was set to expire on November 15,
2014, at which point PIPA would have ceased to be in effect.
However, because of the extension, PIPA will remain in force until
at least May, 2015.
The extension, and the continued validity of PIPA, has important
implications for private sector employers in Alberta. There
is federal privacy legislation - the Personal Information and
Protection of Electronic Documents Act ("PIPEDA") -
that would apply to organizations in Alberta in the absence of any
provincial privacy legislation. PIPEDA provides many of the
same privacy protections as PIPA, but it would not have applied to
the personal information of employees of private sector employers
PIPEDA applies only to personal information that is collected,
used, or disclosed by organizations in the course of commercial
activities or to personal information about employees of federally
regulated employers, such as telecommunications businesses, banks,
interprovincial carriers, etc. Decision-makers across Canada,
including the Alberta Information and Privacy Commissioner, have
determined that the collection, use, and disclosure of personal
information about employees are not included in the ambit of the
"course of commercial activities". As a result,
PIPEDA does not apply to any personal information collected, used,
or disclosed by provincially regulated employers about their own
Conversely, PIPA applies broadly to every organization in
respect of all personal information, and also contains specific
rules in regard to personal employee information. In
particular, employers in Alberta must only collect, use, or
disclose personal information about their employees for purposes
that are reasonable and also with either the consent of the
employee or, if the collection, use, or disclosure is for the
purposes of establishing, managing, or terminating the employment
relationship, with notice to the employee. PIPA also provides
employees with a right of access and opportunity to correct
personal information held by their employers, and imposes an
obligation on organizations to report any unauthorized access to or
disclosure of personal information to the Information and Privacy
Commissioner in some circumstances.
Had the Supreme Court not extended the suspension of its
declaration of invalidity, it is not believed that the Government
of Alberta would have amended PIPA prior to the November 15
deadline, and PIPA would have no longer been in force. If so,
PIPEDA would have applied in place of PIPA, but there would no
longer be any privacy protections in regard to the personal
information of employees of provincially regulated, private sector
employers. Public sector employers in Alberta would not have
been affected, as the Freedom of Information and Protection of
Privacy Act (Alberta), which applies to them, would continue
to apply. Nonetheless, as many individuals in Alberta work
for provincially regulated, private sector employers, the
invalidity of PIPA would have eliminated the privacy rights of a
large number of people. For the next six months, however, the
privacy rights and obligations of employees and employers,
respectively, in Alberta will continue.
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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