Nov 13, 2014

Alberta's Personal Information Protection Act: Supreme Court Grants Time Extension to Alberta Government to Make Amendments

Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 (CanLII)

Originally published as a Davis LLP Privacy & Access to Information bulletin

On November 15, 2013, the Supreme Court of Canada unanimously held that Alberta’s Personal Information Protection Act (“PIPA”) infringed on the right of freedom of expression in the Canadian Charter of Rights and Freedoms by limiting the ability of labour unions to videotape and photograph individuals crossing a picket line: see Alberta (Information Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, and our previous Nymity interview regarding this case. At that time, the Supreme Court suspended the declaration of invalidity for 12 months to give Alberta’s Legislature an opportunity to amend PIPA in order to comply with the Charter.

The Alberta government previously announced it would address the constitutional issues raised by the Supreme Court’s decision and amend PIPA during the Fall Legislative sitting. However, the Third Session of the Alberta Legislature is not set to begin until November 17, 2014, which means the Alberta government will not meet the deadline originally imposed by the Supreme Court. The Alberta government therefore filed a motion with the Supreme Court seeking a time extension and, on October 30, 2014, a six-month extension was granted.

If the Supreme Court had refused to grant the extension (causing PIPA to become “invalid”), the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”) would have likely applied in the Province of Alberta and would have governed the collection, use and disclosure of personal information by private organizations, provided the information was collected, used or disclosed for commercial purposes.

The extension of the deadline to amend PIPA is important for employers, employees and all Alberta residents given the unique attributes of the Alberta legislation. For instance, PIPA provides for mandatory notification of information security breaches to the Alberta Commissioner, and allows for local enforcement of the legislation without the involvement of courts (this is because the Alberta Commissioner has order-making power, whereas the Federal Commissioner does not). PIPA also provides for the protection of privacy rights of provincially regulated private sector employers. In contrast, PIPEDA does not apply to personal information of employees, other than employees of federally-regulated businesses, such as airlines, chartered banks and telecommunications providers.

As PIPA continues to be in force, provincially-regulated employers in Alberta should continue to adhere to the terms of their privacy policies and procedures. We anticipate that the Alberta government will introduce an amended PIPA in a substantially similar form when the Legislature resumes sitting this fall.

The Government of Alberta now has until May 15, 2015 to amend PIPA. We recommend that employers keep their eye on upcoming changes to PIPA to ensure that their privacy policies and procedures continue to be compliant following the amendments.