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 in Alberta.
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 employees.
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.