On July 16, 2014, Alberta’s Office of the Information and Privacy Commissioner issued an order (Order P2014-05) in which the Adjudicator considered whether hiring, paying and managing employees constitutes a “commercial activity” under Alberta’s Personal Information Protection Act (“PIPA”).
A former employee (the “Applicant”) of the Canadian Corps of Commissionaires (the “Organization”) made a request to the Organization under PIPA for access to all of the information contained in the Applicant’s employee files. While the Organization provided some responsive records to the Applicant, it withheld some information, and raised the issue that the Organization is a non-profit organization and therefore, PIPA does not apply to it.
Under Section 56(3) of PIPA, PIPA “applies to a non-profit organization in the case of personal information that is collected, used or disclosed by the non-profit organization in connection with any commercial activity carried out by the non-profit organization.”
The Adjudicator first established that the Organization qualified as a “non-profit organization”, as defined under PIPA. The Adjudicator then considered whether the information requested was collected, used or disclosed by the Organization in connection with any commercial activity. Section 56(1)(a) of PIPA defines “commercial activity” as “any transaction, act or conduct, or any regular course of conduct, that is of a commercial character.” “Commercial activity” also includes the selling, bartering or leasing of membership lists or of donor or other fund-raising lists; the operation of a private school or an early childhood services program as defined in the School Act (Alberta); and the operation of a private college as defined in the Post-secondary Learning Act (Alberta).
The Adjudicator examined the activity in question (collecting and using an employee’s personal information for employment purposes) in order to determine whether it was more or less commercial, and concluded that hiring and managing employees is not the commercial activity in which even for-profit businesses engage, but that for-profit businesses hire and manage employees so that they can engage in commercial activities. The Adjudicator relied on International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers and its Local 736 v. E.S. Fox Ltd., 2006 CanLII 468 (ON LRB), in which the Ontario Labour Relations Board concluded that an organization’s collection, use or disclosure of personal information for employment purposes was not in itself a commercial activity under the Personal Information Protection and Electronic Documents Act, S.C. 2000, c-5, and that the mere fact of engaging in a commercial activity cannot transform the collection, use or disclosure of employee personal information for employment purposes into a commercial activity.
For these reasons, the Adjudicator found that the information requested by the Applicant was not collected, used or disclosed in connection with any commercial activity, and therefore fell outside of the scope of PIPA. The Organization had no duty under PIPA to respond to the request.