Law Times

PAGE 12 FOCUS January 23, 2012 • Law Times Court deals blow to privacy commissioner BY MICHAEL McKIERNAN Law Times licence plate numbers could signal a shift in the fortunes of privacy commissioners across the country, according to some lawyers who practise in the area. In Leon's T Furniture Ltd. v. Alberta (Information and Privacy Commissioner), the Alberta Court of Appeal sided with Leon's in a split decision that overturned the privacy commissioner's finding that the store's policy violated the provincial Personal Information Protection Act. In November, the Supreme Court denied leave to appeal the decision. "Privacy commissioners have had a monopoly on the interpreta- tion of a lot of these issues, and I think people are very interested in seeing the courts get a hold of it and give it a little bit more he Supreme Court of Canada's decision not to hear an appeal over a fur- niture store's collection of rigorous legal scrutiny outside of the advocacy role that privacy commissioners have," says Mark Hayes, founding partner of Hayes eLaw LLP. "I think you're going to see some changes in approach over the next few years as these cases trickle up through the courts." Lawyers at McCarthy Tétrault LLP, the firm that acted for Leon's, say the decision will be useful for businesses across Canada in "limiting the excesses" of privacy commissioners. "I think it's an important decision in terms of rebalancing privacy law, particu- larly in Alberta," says Geoff Hall, a McCarthys partner who appeared at the Court of Appeal for Leon's. "I think the commissioner was taking a rather extreme view of privacy interests. That's not to say they're unimportant; they're very important but they're not the only interest out there. The decision says there are legitimate reasons to use and collect information and that's got to be taken into account. In our case, we had a very carefully tailored policy designed to protect privacy." For his part, Frank Work, Alberta's former privacy commis- sioner, decried the judgment. He claimed it represents a step back- wards for Canadian privacy rights. "The decision could be used to challenge what were thought to be reasonable, nationally accepted limits on the collection of personal information by private sector orga- nizations," Work said in a statement at the time. "I believe allowing orga- nizations to decide what personal information they are allowed to collect and how they use that infor- mation flies in the face of the origi- nal intent of the legislation." The case centred on Leon's policy of collecting driver's licence and licence plate information when a customer takes delivery of merchandise at the store. The aim, according to Leon's, is to make sure the person who collects the item is the same as the one who paid for it so the store can hand over informa- tion to the police in the event of an business to collect the information for a reasonable purpose. Neither right has predominance, the court determined. "The reasonableness of the adju- dicator's decision is undermined by her failure to recognize that the appellant needed to show only that its policies were 'reasonable,' not that they were the 'best' or 'least intrusive' approaches," wrote Justice Frans Slatter for the majority. According to Hall, the deci- 'I think it's an important decision in terms of rebalancing privacy law, particularly in Alberta,' says Geoff Hall. attempted fraud or theft. In 2008, the privacy commis- sioner found the policy constituted a breach of the act, a ruling upheld by the Court of Queen's Bench. But the appeal court decided the statute demanded a balanc- ing between the privacy rights of the individual and the need of the sion will have the biggest impact in Alberta and British Columbia, which has similarly worded pri- vacy legislation. All other prov- inces except Quebec fall under the federal privacy law, the Personal Information Protection and Electronic Documents Act. "In Alberta, the message has been sent that there can be legiti- mate reasons to collect and use personal information," says Hall. "It's an open question as to whether it will translate to cases under the federal statute." In the decision, Slatter accepted NOW IN ITS 25TH YEAR UNITED STATES, SECOND EDITION RAYMOND E. 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"To the extent that the Alberta decision says it is correct to distinguish between information about people and about things and that the latter will not be personal information, it's a seismic event." According to Hayes, that could open the way for behavioural advertisers who use information about search history to target ads at particular users to make a similar argument about Internet protocol addresses. "If you take Leon's to what some people say is its logical conclusion, then you say IP addresses don't identify people, they identify computers or com- puter equipment. It doesn't tell you if one person or 100 people are using it; therefore, it's not personal information." However, Hayes notes adver- AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 tisers may struggle to stretch the Leon's case that far because of its unique fact situation. Leon's would never actually tie the information it collected back to an individual unless something went wrong at the store. "I don't think it gives free rein to behavioural marketing activities, for example, where the intent of gathering the information about the use of the IP address is to actu- ally get at the activities of specific individuals," says Hayes. www.lawtimesnews.com don't care about the computer; they care about people using it." LT "They

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