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Canadian Privacy Law Developments

December 16, 2011

This AccessPrivacy Canadian Privacy Law Update includes brief updates about the following: 

  • Office of the Information and Privacy Commissioner of Alberta Guidelines for Social Media Background Checks   
  • Supreme Court of Canada decision in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association  
  • Public consultations on the Quebec Commission d'accès à l'information Five-Year Report

OIPC Alberta Releases Guidelines on Social Media and Background Checks

On December 15, 2011, the Office of the Information and Privacy Commissioner of Alberta (OIPC) released Guidelines for Social MediaBackground Checks. The Guidelines "provide practical advice to organizations on how much information can or should be collected through social media when performing a background check and highlight that it may be challenging for organizations to meet the 'reasonable' requirement in PIPA when collecting personal information through social media." As we noted on our Monthly Privacy Call, the Office of the Information and Privacy Commissioner for British Columbia has also released Guidelines for Social MediaBackground Checks.    

Supreme Court of Canada Issues Decision in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association  

The Supreme Court of Canada (SCC) recently allowed an appeal from the Court of Appeal for Alberta in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association.  This decision is significant, as it emphasizes the degree of deference owed to the Office of the Information and Privacy Commissioner (OIPC), given its specialized expertise.  

The case involved a complaint to the OIPC that the Alberta Teachers' Association's disclosure of personal information had violated the Personal Information Protection Act (PIPA). At the time of the complaint, PIPA provided that an inquiry must be completed within 90 days of receipt, unless the Commissioner provided notice (i) that the timeline was being extended, and (ii) of an anticipated date for completing the inquiry. In this case, the Commissioner extended the time period for completing an inquiry 22 months after receipt of the initial complaint. In an application for judicial review, the ATA claimed that the failure to extend the timeline within 90 days of the complaint meant that the Commissioner had lost jurisdiction. A majority of the Court of Appeal agreed with ATA's submission in this regard.  

The SCC held in favour of the Commissioner that the judicial review of the Commissioner's decision was subject to a reasonableness standard. In implicitly determining that an inquiry timeline could be extended after 90 days had elapsed, "[t]he Commissioner was interpreting his own statute and the question was within his specialized expertise." Accordingly, the Commissioner had jurisdiction and his order should be reinstated. 

Quebec Announces Public Consultation on the Quebec Commission d'accès à l'information Five-Year Report  

On December 7, 2011, the Commission des institutions of the Quebec National Assembly announced a public consultation on the Commission d'accès à l'information Five-Year Report on information technology and privacy entitled Technologies et vie privée àl'heure des choix de société (the "Report"). Submissions must be forwarded to the Commission by March 30, 2012.  

On September 29, 2011, the Commission d'accès à l'information tabled its Five-Year Report on information technology and privacy. The Commission noted that Facebook, YouTube, Twitter and Google Street View did not exist at the time of its last Report, and that the Quebec privacy regime must adapt to new realities. The Report emphasizes the need for mechanisms to better inform individuals of the challenges inherent in electronic environments. It recommends granting the Commission with increased funding and powers, such as the power to award punitive damages for violations of the Act respecting the protection of personal information in the private sector.  





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