Employees, Non-Profits and Privacy

Canada is not a bastion of  employee privacy rights. In fact, many provinces provide no statutory privacy protections to private sector employees. However, even where employees have been included in provincial privacy legislation – such as in Alberta – the law can still by patchy. pexels-photo-533189.jpeg

Let’s take the interesting case of Castledowns Bingo Association (Order P2017-07) in Alberta. The key issue for the adjudicator was whether Alberta’s Personal Information Protection Act (PIPA) applied to the employee-complainant. Spoiler alert – the employee won the battle on the application of PIPA but lost the war as to whether PIPA had been breached.

So why is this case interesting? PIPA only applies to non-profit organizations to the extent that organization is collecting, using or disclosing personal information “in connection with a commercial activity.” So is collecting, using and disclosing information about an employee “in connection with a commercial activity”? Here’s the problem: it is well-established that managing an employment relationship is not a commercial activity. The fact that the employee is paid does not make the employment relationship a commercial activity.

That should have been the end of it. However, the adjudicator clearly was not satisfied by leaving non-profit employees outside of PIPA and so contorted the meaning of “in connection with”. Without directly rejecting the idea that the management of an employment relationship is not a commercial activity, the adjudicator concluded that the real issue was whether the employee was performing a commercial activity. If so, then then the collection, use or disclosure of personal information was “in connection with” a commercial activity. This involved reading “in connection with” as meaning “in relation to” or “in association with” – instead of sticking with the words as enacted by the Legislature.

Of course, this resulted in some arbitrary results for the adjudicator, which were essentially left unresolved. An employee in the bingo hall would not be covered (not performing a commercial activity), but an employee in the lounge would be. The employee in the lounge would be covered, but, according to the adjudicator, the back office employee would not be (because bookkeeping is not directly performing a commercial activity even if the funds came from a commercial activity).

You can read the Castledowns Bingo Association case here.

Categories: Privacy

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