An Alberta non-profit organization may be subject to privacy laws in Alberta regardless of whether it receives compensation for services provided. In a recent decision of the Alberta Office of the Information and Privacy Commissioner, the Adjudicator found that Alberta’s privacy legislation, the Personal Information Protection Act (PIPA), applied to the Legal Aid Society of Alberta even though it was a non-profit organization because it collected, used and/or disclosed personal information in connection with a commercial activity. This recent decision provides insight into the interpretation of PIPA’s broad definition of commercial activity in the context of a non-profit organization.
PIPA specifically states that it has no application to defined non-profit organizations except where personal information is collected, used or disclosed by such organization in connection with a commercial activity. PIPA defines “commercial activity” as “… (i) any transaction, act or conduct, or (ii) any regular course of conduct, that is of a commercial character…”, and includes non-limiting examples of commercial activities. Although none of the listed examples of commercial activities were applicable to the Legal Aid Society of Alberta in this case, the Adjudicator still found that it carried on commercial activity because its operations and services could not be easily distinguished from a private law practice or business. The Adjudicator in this case recognized that the exchange of a service for a fee does not always result in “commercial activity”, but stated that “… PIPA is meant to apply to non-profit organizations that are carrying out activities as though they are a business.” Furthermore, the Adjudicator emphasized the fact that the definition of “commercial activity” does not say that the activity must be commercial, but rather says that the activity must be of a commercial character (emphasis added) and one cannot simply evaluate whether an activity has a commercial nature by virtue of profit alone. Although determining whether a non-profit organization carries out a commercial activity is evaluated on a case by case basis, this decision provides further insight into the factors that will be considered in such evaluation.
This recent decision highlights the need for applicable Alberta non-profit organizations to evaluate their service offering and operations and determine whether PIPA will apply to the organization, and if so, take steps accordingly to bring their personal information practices in line with PIPA if required. However, it is important to note that PIPA defines “non-profit organization” as an organization that is (i) incorporated under the Societies Act, (ii) incorporated under the Agricultural Societies Act, or (iii) registered under Part 9 of the Companies Act. While this decision provides guidance on how those specific non-profit organizations will be excluded from PIPA, non-profit organizations operating in Alberta that do not fall under this limited definition of non-profit organization remain subject to PIPA in its entirety.