In my blog dated October 17, 2014, titled, “Impending Lapse of PIPA Creates Uncertainty”, I explored the consequences of PIPA being struck had the Alberta government failed to amend PIPA to comply with the Canadian Charter of Rights and Freedom (the “Charter”) and meet the November 15, 2014 deadline.
Since my October 17, 2014 blog, I have had the opportunity to meet Jill Clayton, the Alberta Information and Privacy Commissioner. In my discussion with Jill Clayton, she advised me that, on October 31, 2014, the Alberta government was granted a 6 month extension to amend PIPA and ensure compliance. This means that it should be business as usual for the next 6 months.
By way of background, on November 15, 2013, the Supreme Court of Canada struck down the Alberta Personal Information Protection Act (“PIPA”) in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 (“United Food”) and, despite a one-year stay to allow for necessary amendments, delay on the part of the Alberta government has caused concerns that PIPA would lapse on November 15, 2014.
In response to the decision, Alberta’s Privacy Commissioner sent an open letter on December 20, 2013, to the Minister of Justice and Solicitor General and the Minister of Service Alberta, proposing amendments designed to bring PIPA into compliance with the United Food decision. The Commissioner emphasized the importance of private-sector privacy legislation for Albertans, and proposed only such changes as were necessary to bring PIPA into compliance, rather than begin a lengthy review process which could bring PIPA into jeopardy. However, the Alberta government prorogued the legislative session in September without introducing any amendment, and the new session will not start until after the November 15, 2014 deadline.
The immediate questions arising from this news are what amendments will the Alberta government adopt and whether they will implement the changes proposed by the Alberta’s Privacy Commissioner.
The long term issue arising from the United Food decision is how the decision will affect the other privacy statutes in Canada. It must be remembered that all general privacy legislation throughout Canada is structured on a sweeping definition of “personal information” that encompasses almost any information about an identifiable individual, although some of the statutes do exclude certain exceptions. As a result, all privacy legislation in Canada begins, in varying degrees, with a premise recognized by the Court of Appeal and Supreme Court to be overbroad. The real question is what these other laws can and will do to accommodate freedom of expression and other legitimate competing concerns.