The Supreme Court of Canada has dismissed the Alberta Information and Privacy Commissioner’s application for leave to appeal from the Alberta Court of Appeal’s decision in Leon’s Furniture Limited v Alberta ( Information and Privacy Commissioner). As a result, the collection of customer driver license information by a retailer has been upheld under Alberta’s Personal information Protection Act as being reasonable in the circumstances.
At issue in Leon’s was the practice of Leon’s to collect driver’s license numbers from customers picking up furniture and whether that practice was in compliance with the Alberta Personal Information Protection Act, in particular, whether the collection and use of the information was reasonable. The delegate for the Alberta Commissioner found that the collection of the customer’s contact information and verification of that information through examination of a driver’s licence was reasonable for the purpose of preventing fraud but that recording the licence number was not necessary to prevent fraud and was therefore unreasonable. The delegate did not consider the argument of Leon’s that recording the numbers was necessary to investigate cases of fraud. On judicial review the Alberta Court of Queen’s Bench held that the delegate’s decision was reasonable and upheld the decision. The Alberta Court of Appeal allowed the appeal holding that the delegate’s decision was unreasonable in that the delegate had failed to properly balance the privacy of Leon’s customers with the legitimate business interests of Leon’s to prevent fraud and to protect its interests and its customers’ interests where fraud may have occurred.
The principal focus of the Court of Appeal was the balancing in the Act between two competing values: the protection of customer’s personal information and the need for commercial organizations to collect, use and disclose personal information for reasonable purposes. The Court of Appeal found that the delegate’s interpretation of what was a reasonable use and the Commissioner’s arguments on the appeal treated the protection of personal information as paramount over the organization’s need to collect information, an interpretation that was not reasonable under the Act. The Court held that an organization need only establish that its collection, use and disclosure of personal information was reasonable, not that it was the best policy or the least intrusive approach to preventing fraud. The Court of Appeal applied a common sense analysis of the commercial realities of Leon’s business and concluded that a reasonable person would consider that the collection of driver’s licence numbers from customers or persons picking up furniture on behalf of customers was appropriate. With the dismissal of the leave application, the Court of Appeal’s common sense approach will prevail in Alberta and will likely be persuasive in the interpretation of other private sector privacy legislation, including the B.C Personal Information Protection Act.