Factum of the Intervener, the Privacy Commissioner of Canada: In the matter of the Information and Privacy Commissioner and Attorney General of Alberta and United Food And Commercial Workers, Local 401

February 2014

Text of argument made by the OPC

Supreme Court Judgments

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S.C.C. File No. 34890

IN THE SUPREME COURT OF CANADA
(On Appeal from the Court of Appeal of Alberta)

BETWEEN:

INFORMATION AND PRIVACY COMMISSIONER
and ATTORNEY GENERAL OF ALBERTA

Appellants

- and -

UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 401

Respondent

- and -

ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, PRIVACY COMMISSIONER OF CANADA, CANADIAN CIVIL LIBERTIES ASSOCIATION, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO, COALITION OF BRITISH COLUMBIA BUSINESSES AND MERIT CANADA, INFORMATION AND PRIVACY COMMISSIONER OF BRITISH COLUMBIA and
ALBERTA FEDERATION OF LABOUR

Interveners

FACTUM OF THE INTERVENER, THE PRIVACY COMMISSIONER OF CANADA

OSLER, HOSKIN & HARCOURT LLP
Box 50, 1 First Canadian Place
Toronto, ON M5X 1B8

Mahmud Jamal

Tel: (416) 862.6764
Fax: (416) 862.6666
mjamal@osler.com

OFFICE OF THE PRIVACY COMMISSIONER OF CANADA
112 Kent Street, 3rd Floor
Ottawa, ON K1A 1H3

Patricia Kosseim
Regan Morris
Kirk Shannon

Tel: (613) 996.0086
Fax: (613) 947.4192
patricia.kosseim@priv.gc.ca

Original to: The Registrar

Roderick Wiltshire
Attorney General of Alberta
9833 - 109 Street
Bowker Building, 4th Floor
Edmonton, Alberta T5K 2E8

Telephone: (780) 422-7145
Facsimile: (780) 425-0307
E-mail: roderick.wiltshire@gov.ab.ca

Counsel for the Appellant, Attorney General of Alberta

Gwen J. Gray Q.C.
Chivers Carpenter
101, 10426 – 81 Avenue
Edmonton, AB T6E 1X5

Telephone: 780-439-3611
Facsimile: 780-439-8543
Email: ggray@chiverslaw.com

Counsel for the Respondent, United Food and Commercial Workers, Local 401

Rochelle Fox
Attorney General of Ontario
Constitutional Law Branch
720 Bay Street - 4th Floor
Toronto, Ontario M5G 2K1

Telephone: (416) 326-4476
Facsimile: (416) 326-4015
E-mail: robin.basu@jus.gov.on.ca

Counsel for the Intervener, Attorney General of Ontario

Sean Gaudet
Attorney General of Canada
Public Law Section, PO Box 36
Exchange Twr.
3400 - 130 King Street West
Toronto, Ontario M5X 1K6

Telephone: (416) 973-0392
Facsimile: (416) 952-4518
E-mail: sean.gaudet@justice.gc.ca

Counsel for the Intervener, Attorney General of Canada

Nitya Iyer
Lovett Westmacott
200 – 736 Granville St.
Vancouver, BC V6Z 1G3

Telephone: 604-684-9221
Facsimile: 250-480-7455
Email ni@lw-law.ca

Counsel for the Intervener, Information and Privacy Commissioner of British Columbia

Patricia D.S. Jackson
Sarah Whitmore
Torys LLP
Suite 3000, 79 Wellington Street West
P.O. Box 270, TD Centre
Toronto, Ontario M5K 1N2

Telephone: (416) 865-7323
Facsimile: (416) 865-7380
E-mail: tjackson@torys.com

Counsel for the Intervener, Canadian Civil Liberties Association

Lindsay M. Lyster
Moore, Edgar, Lyster
195 Alexander Street, 3^rd Floor
Vancouver, British Columbia

Telephone: (604) 689-4457
Facsimile: (604) 689-4467
E-mail: lindsaylyster@unionlawyers.com

Counsel for the Intervener, British Columbia Civil Liberties Association

William S. Challis
Information and Privacy Commissioner/Ontario
2 Bloor Street East, Suite 1400
Toronto, Ontario M4W 1A8

Telephone: (416) 326-3921
Facsimile: (416) 325-9186
E-mail: bill.challis@ipc.on.ca

Counsel for the Intervener, Information and Privacy Commissioner of Ontario

Simon Ruel
HEENAN BLAIKIE LLP
55 Metcalfe Street, Suite 300
Ottawa, ON K1P 6L5

Telephone: (418) 649-5491
Facsimile: 866 265 9976
Email: sruel@heenan.ca

Counsel for the Intervener, Coalition of BC Businesses and Merit Canada

David Williams
Kristan McLeod
Chivers Carpenter
101, 10426 - 81 Avenue
Edmonton, Alberta T6E 1X5

Telephone: (780) 439-3611
Facsimile: (780) 439-8543
E-mail: dwilliams@chiverslaw.com

Counsel for the Intervener, Alberta Federation of Labour

Brian A. Crane, Q.C.
Gowling Lafleur Henderson LLP
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario K1P 1C3

Telephone: (613) 233-1781
Facsimile: (613) 563-9869
E-mail: brian.crane@gowlings.com

Agent for the Appellant, Attorney General of Alberta

Raija Pulkkinen
Sack Goldblatt Mitchell LLP
500 - 30 Metcalfe Street
Ottawa, Ontario K1P 5L4

Telephone: (613) 235-5327
Facsimile: (613) 235-3041
E-mail: rpulkkinen@sgmlaw.com

Agent for the Respondent, United Food and Commercial Workers, Local 401

Robert E. Houston, Q.C.
Burke-Robertson
441 MacLaren Street
Suite 200
Ottawa, Ontario K2P 2H3

Telephone: (613) 236-9665
Facsimile: (613) 235-4430
E-mail: rhouston@burkerobertson.com

Ottawa Agent for the Intervener, Attorney General of Ontario

Christopher M. Rupar
Attorney General of Canada
Bank of Canada Building - East Tower
234 Wellington Street, Room 1212
Ottawa, Ontario K1A 0H8

Telephone: (613) 941-2351
Facsimile: (613) 954-1920
E-mail: christopher.rupar@justice.gc.ca

Agent for the Intervener, Attorney General of Canada

Mark C. Power
Heenan Blaikie LLP
55 Metcalfe Street, Suite 300
Ottawa, ON K1P 6L5

Telephone: 613-236-7908
Facsimile: 613-236-9632
Email: mpower@heenan.ca

Agent for the Intervener, Information and Privacy Commissioner of British Columbia

Guy Régimbald
Gowling Lafleur Henderson LLP
160 Elgin Street
26th Floor
Ottawa, Ontario K1P 1C3

Telephone: (613) 786-0197
Facsimile: (613) 563-9869
E-mail: guy.regimbald@gowlings.com

Ottawa Agent for the Intervener, Canadian Civil Liberties Association

Raija Pulkkinen
Sack Goldblatt Mitchell LLP
500 - 30 Metcalfe Street
Ottawa, Ontario K1P 5L4

Telephone: (613) 235-5327
Facsimile: (613) 235-3041
E-mail: rpulkkinen@sgmlaw.com

Ottawa Agent for the Intervener, British Columbia Civil Liberties Association

Nadia Effendi
Borden Ladner Gervais LLP
World Exchange Plaza
100 Queen Street, suite 1100
Ottawa, Ontario K1P 1J9

Telephone: (613) 237-5160
Facsimile: (613) 230-8842

Ottawa Agent for the Intervener, Information and Privacy Commissioner of Ontario

Perri Ravon
HEENAN BLAIKIE LLP
300-55 Metcalfe Street
Ottawa, ON KIP 6L5
Telephone: (613) 236-8071

Facsimile: 613 236 9632
Email: pravon@heenan.ca

Ottawa Agent for the Intervener, Coalition of BC Businesses and Merit Canada

Raija Pulkkinen
Sack Goldblatt Mitchell LLP
500 - 30 Metcalfe Street
Ottawa, Ontario K1P 5L4

Telephone: (613) 235-5327
Facsimile: (613) 235-3041
E-mail: rpulkkinen@sgmlaw.com

Ottawa Agent for the Intervener, Alberta Federation of Labour

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Part I – Overview

1. This appeal asks whether the Personal Information Protection Act, S.A. 2003, c. P-6.5 (“PIPA”) and regulations thereunder unjustifiably infringe s. 2(b) of the Charter insofar as they restrict a union’s ability to appropriate and use for expression without consent someone else’s image or “personal information” during the course of a strike.
2. The Privacy Commissioner of Canada has six brief points, the first relating to s. 2(b) and five relating to the appropriate balancing under s. 1.
3. First, the Charter does not guarantee an unfettered right to appropriate and use someone else’s personal information without their consent. Such a right is not necessary for a union to engage in meaningful expression. Moreover, the method of expression may also exclude constitutional protection.
4. Second, individuals retain important privacy interests even when their personal information becomes public. The Court of Appeal inappropriately transposed the reasonable expectation of privacy paradigm from search and seizure law to the private sector data protection context.
5. Third, the Court of Appeal’s approach would have dramatic consequences for online privacy protection in the digital age by encouraging more sweeping surveillance of ordinary Canadians, in physical space and in cyberspace.
6. Fourth, freedom of expression and privacy are not in opposition and can be reconciled. Privacy rights enhance freedom of expression. The Court of Appeal erred by taking a hierarchical approach to rights and by declaring that the union’s claimed right to expression “trumps” in this case.
7. Fifth, Canadian data protection statutes like PIPA already carefully balance the individual’s right to privacy and the needs of organizations. The Alberta Legislature should be accorded a margin of appreciation because its legislative choices fall within a zone of reasonable constitutional options.
8. Sixth, invalidating PIPA could have significant implications for the constitutionality of federal legislation and Canada’s trade with sister nations.

Part II – Argument

1. Section 2(b) of the Charter does not guarantee an unfettered constitutional right to appropriate and use an individual’s image or other personal information without their consent

9. The Alberta Court of Appeal framed the issue as whether a “union has a constitutionally protected right to collect images of persons crossing the picket line.”^{Footnote 1} The union’s claimed uses for the collected images are almost unfettered, ranging from evidence gathering, education, dissuading persons from crossing the picket line, satire directed at the company’s management, to threatened placement on a website entitled www.CasinoScabs.ca.^{Footnote 2} All parties agree that the video and camera recordings of images of individuals are “personal information” under PIPA.^{Footnote 3}
10. The first issue is thus whether unions have a constitutionally protected right, guaranteed under s. 2(b) of the Charter, to appropriate and use an individual’s image or other personal information for virtually any expressive purpose without their consent.
11. Section 2(b) of the Charter does not extend this far. As this Court has noted, “[s]ection 2(b) guarantees freedom of expression, not access to information.”^{Footnote 4} The access to someone else’s information is a “derivative right” that has constitutional protection only “where it is a necessary precondition of meaningful expression.”^{Footnote 5} A s. 2(b) “claimant must establish that the denial of access effectively precludes meaningful” expression, that “access is necessary for the meaningful exercise of free expression on matters of public or political interest.”^{Footnote 6}
12. Thus, private sector organizations have no unfettered constitutional right to appropriate and use an individual’s image or personal information without consent for their own purposes. To trigger s. 2(b), organizations must first establish that their ability to collect and use the personal information in question is necessary in order to engage in meaningful expression. The contrary view expands s. 2(b) well beyond its purpose or precedent and would permit – or rather constitutionalize – surveillance or monitoring of private citizens in public based upon the flimsiest nexus with an expressive purpose.
13. A few examples illustrate how s. 2(b) cannot be stretched this far. If unions can invoke a constitutionally protected right to videotape persons crossing a picket line without consent and threaten humiliating online postings, do retailers now also have a constitutionally protected right to videotape consumers buying products in their stores in order to display the footage in advertisements without their consent in the name of commercial expression? Do employers then also have a s. 2(b) protected right to monitor their employees’ Facebook accounts, whether or not they are “open to all users,” in order to shame workers who express pro-union sentiments? And do anti-abortion groups have a s. 2(b) right to videotape women entering abortion clinics and to post the footage online? None of these acts of appropriating and using someone else’s image or personal information without consent approaches the standard of necessity required in order to engage s. 2(b).
14. Even if s. 2(b) is prima facie engaged, the Court would still need to consider whether any constitutional protection is removed because of the method of expression.^{Footnote 7} For example, invasive news gathering techniques are not constitutionally protected,^{Footnote 8} any more than tortious picketing – including any activity that involves a potentially tortious invasion of privacy.^{Footnote 9} As this Court has noted, “[p]icketing which breaches the criminal law or one of the specific torts like trespass, nuisance, intimidation, defamation or misrepresentation will be impermissible, regardless of where it occurs.”^{Footnote 10} The Court would therefore need to consider whether, for example, web-posting for the purposes of intimidation is harmful or otherwise falls outside s. 2(b). Such questions must be examined contextually before s. 2(b) is even engaged.

2. Individuals retain important privacy interests even in personal information exposed in public places

15. The Alberta Court of Appeal’s s. 1 analysis was premised on individuals having only a “minimal” privacy interest in the personal information that is exposed to the public. The Court noted that “[t]he persons who were videotaped were in a public place, crossing an obvious picket line, in the face of warning signs that images were being collected. The privacy expectations were very low.”^{Footnote 11} Elsewhere, the Court stated that “[m]embers of the public cannot […] have a reasonable expectation that they can live their lives in total anonymity. People do not have a right to keep secret everything they do in public, such as crossing picket lines. There is no recognized right to withhold consent to the dissemination of information about unpleasant conduct. Holding people accountable for what they do or do not do in public is a component of the right to free expression.”^{Footnote 12}
16. With respect, the Court of Appeal misunderstood the paradigm of statutory private sector privacy protection in Canada and this resulted in a flawed approach to s. 1.
17. First, the Court erred in transposing to this case the reasonable expectation of privacy doctrine from the search and seizure context under s. 8 of the Charter. Section 8 addresses the balance between the state’s interest in law enforcement and the individual’s right to be left alone and to be free from unjustified state encroachment.^{Footnote 13} It describes a zone of individual privacy into which the state cannot intrude without prior judicial authorization. By contrast, legislation such as PIPA has the altogether different purpose of providing individuals with a degree of control over their personal information in the private sector. The reasonable expectation of privacy doctrine from the search and seizure context therefore does “not assist in the interpretation of statutes” such as PIPA.^{Footnote 14} By applying the wrong paradigm, the Court of Appeal overlooked the myriad other privacy interests that PIPA was designed to protect.
18. Second, the Court of Appeal was wrong to conclude that individuals have “minimal” or “very low” privacy interests in their personal information that is exposed to the public simply by living in society. Individuals do not renounce all privacy rights for all purposes when they expose their personal information in public.^{Footnote 15} This Court has already acknowledged that “the right to one’s image is included in the right to respect for one’s private life” and is not extinguished in a public setting.^{Footnote 16} Moreover, every Canadian statute regulating personal information in the private sector protects personal information even when exposed to public view.^{Footnote 17} PIPA’s pressing and substantial objective is to provide individuals with some control over how their personal information is collected, used, and disclosed by third party organizations, even if it is exposed to the public. This objective is central to the concept of informational privacy – the right “‘of individuals, groups, or institutions to determine for themselves when, how and to what extent information about them is communicated to others.’”^{Footnote 18} Informational privacy is protected because “all information about a person is in a fundamental way his own, for him to communicate or retain […] as he sees fit.”^{Footnote 19}
19. The right to control one’s personal information is fundamental to personal autonomy and human dignity.^{Footnote 20} As this Court has noted, “the quasi-constitutional nature of the protection of personal information has been recognized by the Court on numerous occasions.”^{Footnote 21} This is not mere “verbal rhetoric”, as the Court of Appeal asserted.^{Footnote 22} Legislatures nationwide have protected fundamental rights at the core of personal autonomy in a free and democratic society. These rights should not be swept aside simply because information is exposed on the street, the Internet, or in some other public setting.
20. PIPA’s purpose is therefore to afford individuals some degree of control over their personal information, including how they present their image when carrying out daily tasks in public. Canadians must have a modicum of privacy when buying medication in a drugstore, attending an Alcoholics Anonymous class, or simply going for a walk, alone or with someone else.^{Footnote 23}

3. Consequences of the Court of Appeal’s approach for privacy protection in the digital age

21. 21. The need to control one’s personal information even if it is available in public is particularly important online and in today’s digital age. Legislatures have recognized that technological advances make it much easier to misuse personal information.^{Footnote 24} In the past, personal information that was available to the public was protected by practical obscurity: technology did not permit vast amounts of personal data to be recorded, accessed or combined. But digitization and the Internet now make it easy to amass vast amounts of disparate pieces of personal information exposed to the public and to form detailed profiles of individuals. With new technologies such as facial recognition,^{Footnote 25} Google Street View,^{Footnote 26} Google Glass^{Footnote 27}, unmanned aerial vehicles,^{Footnote 28} and predictive analytics,^{Footnote 29} the private sector’s capacity for general surveillance is only increasing, making the objective of retaining control over one’s personal information even more pressing and substantial.
22. 22. In sum, finding PIPA unconstitutional could begin a slippery slope towards more sweeping surveillance of ordinary Canadians, both in physical space and in cyberspace.

4. The proper balance between freedom of expression and privacy must recognize that privacy rights enhance freedom of expression

23. The Court of Appeal’s impoverished approach to privacy protection is also reflected in its observation that the statutory and quasi-constitutional protections of PIPA “cannot be equated with constitutional values like freedom of expression and freedom of association.”^{Footnote 30} But this Court has consistently rejected such a hierarchical approach.^{Footnote 31} Freedom of expression and privacy are both constitutional values and both must be respected and reconciled.
24. Thus, while this appeal superficially pits freedom of expression against the right to privacy, these rights are not in opposition and can be reconciled. “[B]oth freedom of expression and privacy understood in terms of one’s capacity for self-presentation protect expressive activity.”^{Footnote 32} Protecting personal information actually supports the values underlying freedom of expression. Individuals will self-censor what they say, how they act, or where they go if they are watched and recorded for any purpose without their consent, dramatically diminishing all manner of personal freedoms in Canada.^{Footnote 33}

5. Canadian data protection statutes already carefully balance an individual’s right to privacy and the needs of organizations

25. In addressing whether legislation minimally impairs a Charter right, courts will, of course, often grant the legislator a margin of appreciation, especially where complex social or commercial interactions are involved.^{Footnote 34} Because there are often different ways of tackling a social issue, the courts will respect the legislature’s choice where it falls within a range of reasonable alternatives.^{Footnote 35}
26. PIPA’s origins show how the Alberta legislature has already considered and weighed the competing interests, such that its choice falls within a range of reasonable options and merits deference.
27. PIPA’s protections are modeled on privacy and information protection principles set out in Schedule 1 of PIPEDA,^{Footnote 36} which in turn incorporates the Canadian Standards Association Model Code for the Protection of Personal Information (“CSA Model Code”). The CSA Model Code was “[t]he subject of intense negotiation between business, consumer groups, and government” and represents “a compromise on substance.”^{Footnote 37} Thus, both PIPA and PIPEDA reflect a carefully calibrated consensus between multiple stakeholders, including businesses and other organizations.
28. This consensus is also reflected in PIPA’s express purpose being to balance the protection of personal information with the needs of organizations to collect, use, and disclose such information for reasonable purposes.^{Footnote 38} PIPA achieves this balance inter alia by: (1) permitting organizations to collect, use and disclose personal information where consent has been obtained, the organization’s purposes are reasonable, the information collected is necessary for such purposes, and other minimal requirements have been met;^{Footnote 39} (2) acknowledging several exceptions to the consent requirement,^{Footnote 40} where broader public interests should prevail over an individual’s right to control his or her personal information;^{Footnote 41} (3) exempting entirely from its ambit the collection, use, and disclosure of personal information that is done for domestic, artistic, literary or journalistic purposes,^{Footnote 42} thereby ensuring that PIPA does not prevent activities that aim to inform the public on matters of public interest.^{Footnote 43} And, of course, organizations, including unions, are not prevented in any way from expressing themselves without using the personal information of individuals.
29. In short, PIPA is not “heavy handed” or “stifling” as the Court of Appeal claimed.^{Footnote 44} It represents a careful balance of competing interests and provides important exceptions and safeguards that allow organizations to engage in meaningful expression. To rewrite the Act, as the Court of Appeal suggested, to include a “general exemption for information collected and used for free expression” would not achieve a better balance.^{Footnote 45} It would unravel the Legislature’s careful compromise by allowing the expressive rights of organizations to trump individuals’ privacy rights, regardless of context, purpose, or circumstance.

6. A final word of caution: potential consequences of this Court’s ruling for the constitutionality of PIPEDA

30. Because PIPA is based on PIPEDA, a finding that PIPA is unconstitutional could have ramifications for PIPEDA’s constitutionality and thus also for Canada’s international trade with foreign nations, particularly those in the European Union (“EU”) that clearly recognize a right to privacy in public spaces.^{Footnote 46} The EU requires member states to restrict transborder flows of personal data where destination-states do not have adequate data protection legislation.^{Footnote 47} By virtue of PIPEDA’s enactment, Canada was granted adequacy status under the EU’s Data Protection Directive, thus allowing for the free-flow of data between Canada and EU member states.^{Footnote 48} Holding PIPA to be unconstitutional could jeopardize Canada’s adequacy status under the EU Directive and thus also Canada’s international trade.

Part III – Order Sought

31. The Privacy Commissioner of Canada takes no position on the disposition of this appeal. She does not seek costs and asks that no costs be awarded against her. She also seeks leave to present 10 minutes of oral argument at the hearing.

All of which is respectfully submitted this 21^st day of May, 2013.

Mahmud Jamal
Patricia Kosseim
Regan Morris
Kirk Shannon

Counsel for the Intervener,
Privacy Commissioner of Canada

Part IV – Table of Authorities

Cases	Paragraph referred to
Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567.	25
Aubry v. Éditions Vice-Versa Inc., [1998] 1 S.C.R. 591.	18, 28
Campbell v MGN Limited, [2004] A.C. 457 (H.L.)	30
Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610.	25
Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 19.	28
CKOY Ltd. v. The Queen, [1979] 1 S.C.R. 2.	28
Compagnie d'assurances Standard Life v. Tremblay, 2010 QCCA 933.	18
Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.	23
Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403. Book of authorities of the appellant, Information and Privacy Commissioner, Tab 9	19
Doré v. Barreau du Québec, [2012] 1 S.C.R. 395. Book of authorities of the appellant, Information and Privacy Commissioner, Tab 10	25
Englander v. Telus Communications Inc., 2004 FCA 387.	27
Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.	19
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145.	17
Jones v Tsige, 2012 ONCA 32.	14
Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773.	19
Leon’s Furniture Limited v. Alberta (Information and Privacy Commissioner), 2011 ABCA 94.	17
Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141.	14
Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, [2010] 1 S.C.R. 815.	11
Pro Swing Inc. v. Elta Golf Inc., [2006] 2 S.C.R. 612. Book of authorities of the appellant, Information and Privacy Commissioner, Tab 13	19
Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698.	23
R. v. Duarte, [1990] 1 S.C.R. 30.	18
R. v. Dyment, [1988] 2 S.C.R. 417. Book of authorities of the appellant, Information and Privacy Commissioner, Tab 15	18
R. v. National Post, [2010] 1 S.C.R. 477.	14
R. v. Tessling, [2004] 3 S.C.R. 432. Book of authorities of the appellant, Information and Privacy Commissioner, Tab 18	18
R. v. Tse, [2012] 1 S.C.R. 531.	19
R. v. Wong, [1990] 3 S.C.R. 36.	18
R. v. Cole, [2012] S.C.R. 34.	18
R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156.	14
Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11.	25
Syndicat des travailleurs(euses) de Bridgestone Firestone de Joliette (CSN) v. Trudeau, [1999] R.J.Q. 2229.	18
United Food and Commercial Workers, Local 401, Alberta Office of the Information and Privacy Commissioner, Order P2008-008, March 30, 2009, Case File No. P0564. Appellant’s Record, Volume 1, Tab 2	28
United Food and Commercial Workers, Local 401 v. Alberta (Attorney General), 2012 ABCA 130. Appellant’s Record, Volume 1, Tab 6	9, 14, 15, 19, 23, 29
Von Hannover v Germany (no. 2) (2012), 55 E.H.R.R. 15	30
Von Hannover v Germany (2004), 40 E.H.R.R. 1	30

Part V – Table of Statutes

An Act respecting the Protection of personal information in the private sector, R.S,Q. c.P-39.1, s. 1.

1. The object of this Act is to establish, for the exercise of the rights conferred by articles 35 to 40 of the Civil Code concerning the protection of personal information, particular rules with respect to personal information relating to other persons which a person collects, holds, uses or communicates to third persons in the course of carrying on an enterprise within the meaning of article 1525 of the Civil Code.

The Act applies to such information whatever the nature of its medium and whatever the form in which it is accessible, whether written, graphic, taped, filmed, computerized, or other.

This Act also applies to personal information held by a professional order to the extent provided for by the Professional Code (chapter C-26).

This Act does not apply to journalistic, historical or genealogical material collected, held, used or communicated for the legitimate information of the public.

Divisions II and III of this Act do not apply to personal information which by law is public.

1993, c. 17, s. 1; 2002, c. 19, s. 19; 2006, c. 22, s. 111.

Civil Code of Québec, L.R.Q., c. C-1991, arts. 35-36

35. Every person has a right to the respect of his reputation and privacy.
No one may invade the privacy of a person without the consent of the person unless authorized by law.

1991, c. 64, a. 35; 2002, c. 19, s. 2.

36. The following acts, in particular, may be considered as invasions of the privacy of a person:

(1) entering or taking anything in his dwelling;

(2) intentionally intercepting or using his private communications;

(3) appropriating or using his image or voice while he is in private premises;

(4) keeping his private life under observation by any means;

(5) using his name, image, likeness or voice for a purpose other than the legitimate information of the public;

(6) using his correspondence, manuscripts or other personal documents.

1991, c. 64, a. 36.

Personal Information Protection Act, S.A. 2003, c. P-6.5 , s. 3, 4(3), 7(1), 11, 13, 14, 15, 16, 17, 18, 19, 20-22, Factum of the Attorney General of Alberta.

Personal Information Protection Act Regulation, Alta. Reg. 366/2003, ss. 6-7, Factum of the Information and Privacy Commissioner of Alberta.

Personal Information Protection Act Regulations, B.C. Reg. 473/2003, s. 6

Prescribed source of public information

6 (1) Subject to subsection (2), the following are sources of information available to the public, which are prescribed for the purposes of sections 12 (1) (e), 15 (1) (e) and 18 (1) (e) of the Act:

• (a) the name, address, telephone number and other personal information of a subscriber that appears in a telephone directory or is available through Directory Assistance if
  • (i) the directory or the directory assistance service is available to the public, and
  • (ii) the subscriber is permitted to refuse to have his or her personal information included in the directory or made available by directory assistance;
• (b) personal information of an individual that appears in a professional or business directory, listing or notice that is available to the public, if the individual is permitted to refuse to have his or her personal information included in the directory;
• (c) personal information appearing in a registry to which the public has a right of access, if the personal information is collected under the authority of an enactment, the laws of the government of Canada or a province or the bylaws of a municipality or other similar local authority in Canada;
• (d) personal information that appears in a printed or electronic publication that is available to the public, including a magazine, book or newspaper in printed or electronic form.

(2) An organization must not collect, use or disclose personal information about an individual from a source referred to in subsection (1) (d) if

• (a) a court has prohibited the publication or the continued publication of that personal information by the source, or
• (b) the commissioner has made an order stating that the personal information from the source has been published contrary to the Act.

Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5, s. 26(2)(b)

Regulations

26. (1) The Governor in Council may make regulations

(a) specifying, by name or by class, what is a government institution or part of a government institution for the purposes of any provision of this Part;

(a.01) specifying, by name or by class, what is an investigative body for the purposes of paragraph 7(3)(d) or (h.2);

(a.1) specifying information or classes of information for the purpose of paragraph 7(1)(d), (2)(c.1) or (3)(h.1); and

(b) for carrying out the purposes and provisions of this Part.

Orders

(2) The Governor in Council may, by order,

(a) provide that this Part is binding on any agent of Her Majesty in right of Canada to which the Privacy Act does not apply; and

(b) if satisfied that legislation of a province that is substantially similar to this Part applies to an organization, a class of organizations, an activity or a class of activities, exempt the organization, activity or class from the application of this Part in respect of the collection, use or disclosure of personal information that occurs within that province.

Privacy Act, R.S.B.C. 1996, c. 373, s. 3(2)

3 (2) It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.

Privacy Act, R.S.N.L. 1990, c. P-22, s. 4.

4. Proof that there has been

• (a) surveillance, auditory or visual, whether or not accomplished by trespass, of an individual, by any means including eavesdropping, watching, spying, harassing or following;
• (b) listening to or recording of a conversation in which an individual participates, or listening to or recording of messages to or from that individual passing by means of telecommunications, otherwise than as a lawful party to them;
• (c) use of the name or likeness or voice of an individual for the purposes of advertising or promoting the sale of, or other trading in, property or services, or for other purposes of advantage to the user where, in the course of the use, the individual is identified or identifiable and the user intended to exploit the name or likeness or voice of that individual; or
• (d) use of letters, diaries or other personal documents of an individual,

without the consent, expressed or implied, of the individual or some other person who has the lawful authority to give the consent is, in the absence of evidence to the contrary, proof of a violation of the privacy of the individual first mentioned.

The Privacy Act, R.S.S. 1978, c. P-24, s. 3

Examples of violation of privacy

3 Without limiting the generality of section 2, proof that there has been:

• (a) auditory or visual surveillance of a person by any means including eavesdropping, watching, spying, besetting or following and whether or not accomplished by trespass;
• (b) listening to or recording of a conversation in which a person participates, or listening to or recording of messages to or from that person passing by means of telecommunications, otherwise than as a lawful party thereto;
• (c) use of the name or likeness or voice of a person for the purposes of advertising or promoting the sale of, or any other trading in, any property or services, or for any other purposes of gain to the user if, in the course of the use, the person is identified or identifiable and the user intended to exploit the name or likeness or voice of that person; or
• (d) use of letters, diaries or other personal documents of a person;

without the consent, expressed or implied, of the person or some other person who has the lawful authority to give the consent is prima facie evidence of a violation of the privacy of the person first mentioned.

R.S.S. 1978, c.P-24, s.3; 1979, c.69, s.19.

The Privacy Act, C.C.S.M. c. P125, ss. 3, 5

Examples of violation of privacy

3 Without limiting the generality of section 2, privacy of a person may be violated

• (a) by surveillance, auditory or visual, whether or not accomplished by trespass, of that person, his home or other place of residence, or of any vehicle, by any means including eavesdropping, watching, spying, besetting or following;
• (b) by the listening to or recording of a conversation in which that person participates, or messages to or from that person, passing along, over or through any telephone lines, otherwise than as a lawful party thereto or under lawful authority conferred to that end;
• (c) by the unauthorized use of the name or likeness or voice of that person for the purposes of advertising or promoting the sale of, or any other trading in, any property or services, or for any other purposes of gain to the user if, in the course of the use, that person is identified or identifiable and the user intended to exploit the name or likeness or voice of that person; or
• (d) by the use of his letters, diaries and other personal documents without his consent or without the consent of any other person who is in possession of them with his consent.

Defences

5 In an action for violation of privacy of a person, it is a defence for the defendant to show

• (a) that the person expressly or by implication consented to the act, conduct or publication constituting the violation; or
• (b) that the defendant, having acted reasonably in that regard, neither knew or should reasonably have known that the act, conduct or publication constituting the violation would have violated the privacy of any person; or
• (c) that the act, conduct or publication in issue was reasonable, necessary for, and incidental to, the exercise or protection of a lawful right of defence of person, property, or other interest of the defendant or any other person by whom the defendant was instructed or for whose benefit the defendant committed the act, conduct or publication constituting the violation; or
• (d) that the defendant acted under authority conferred upon him by a law in force in the province or by a court or any process of a court; or
• (e) where the act, conduct or publication constituting the violation was
  • (i) that of a peace officer acting in the course of his duties; or
  • (ii) that of a public officer engaged in an investigation in the course of his duty under a law in force in the province;
• that it was neither disproportionate to the gravity of the matter subject to investigation nor committed in the course of a trespass; and was within the scope of his duties or within the scope of the investigation, as the case may be, and was reasonably necessary in the public interest;
• (f) where the alleged violation was constituted by the publication of any matter
  • (i) that there were reasonable grounds for the belief that the publication was in the public interest; or
  • (ii) that the publication was, in accordance with the rules of law in force in the province relating to defamation, privileged; or
  • (iii) that the matter was fair comment on a matter of public interest.

Organizations in the Province of Alberta Exemption Order, SOR/2004-219

PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT

Registration 2004-10-12

Organizations in the Province of Alberta Exemption Order

C.P. 2004-1163 2004-10-12

Whereas the Governor in Council is satisfied that the Personal Information Protection Act, S.A. 2003, c. P-6.5, of the Province of Alberta, which is substantially similar to Part 1 of the Personal Information Protection and Electronic Documents Act^a, applies to the organizations described in the annexed Order;

^aS.C. 2000, c. 5

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to paragraph 26(2)(b) of the Personal Information Protection and Electronic Documents Act^a, hereby makes the annexed Organizations in the Province of Alberta Exemption Order.

EXEMPTION

1. An organization, other than a federal work, undertaking or business, to which the Personal Information Protection Act, S.A. 2003, c. P-6.5, of the Province of Alberta, applies is exempt from the application of Part 1 of the Personal Information Protection and Electronic Documents Act, in respect of the collection, use and disclosure of personal information that occurs within the Province of Alberta.

COMING INTO FORCE

2. This Order comes into force on the day on which it is registered.

Regulations Specifying Publicly Available Information, SOR/2001-7

PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT

Registration 2000-12-13

Regulations Specifying Publicly Available Information

P.C. 2000-1777 2000-12-13

Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to paragraph 26(1)(a.1) of the Personal Information Protection and Electronic Documents Act^a, hereby makes the annexed Regulations Specifying Publicly Available Information.

^aS.C. 2000, c. 5

INFORMATION

1. The following information and classes of information are specified for the purposes of paragraphs 7(1)(d), (2)(c.1) and (3)(h.1) of the Personal Information Protection and Electronic Documents Act:

(a) personal information consisting of the name, address and telephone number of a subscriber that appears in a telephone directory that is available to the public, where the subscriber can refuse to have the personal information appear in the directory;

(b) personal information including the name, title, address and telephone number of an individual that appears in a professional or business directory, listing or notice, that is available to the public, where the collection, use and disclosure of the personal information relate directly to the purpose for which the information appears in the directory, listing or notice;

(c) personal information that appears in a registry collected under a statutory authority and to which a right of public access is authorized by law, where the collection, use and disclosure of the personal information relate directly to the purpose for which the information appears in the registry;

(d) personal information that appears in a record or document of a judicial or quasi-judicial body, that is available to the public, where the collection, use and disclosure of the personal information relate directly to the purpose for which the information appears in the record or document; and

(e) personal information that appears in a publication, including a magazine, book or newspaper, in printed or electronic form, that is available to the public, where the individual has provided the information.

COMING INTO FORCE

2. These Regulations come into force on January 1, 2001.