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Federal Court of Appeal Interprets PIPEDA in Englander v. Telus Communications Inc.
In its recent decision in Englander v. Telus Communications Inc., the Federal Court of Appeal has made some important findings about the interpretation and application of the Personal Information Protection and Electronic Documents Act (PIPEDA).
The main issue in the case was whether Telus had obtained appropriate consent for the disclosure of personal information of first-time customers. By virtue of the regulation specifying publicly available information under PIPEDA, information appearing in a telephone directory can be collected, used and disclosed without consent. The issue in this case was what form of consent was required before the information appeared in the telephone directory in the first place. At the time they signed up for the telephone service, Telus asked customers how they would like their information to appear in the directories but did not advise them of the option to have a non-listed number or of the number and type of directories involved (white pages, directory assistance, internet "People Finder" with reverse look-up and services for independent directory publishers). Telus later supplied information about the availability of the non-listed service and the various directories.
The Court of Appeal held that this was not sufficient. While providing information later satisfies the openness principle in PIPEDA, it does not meet the requirements of knowledgeable consent. The uses of information, and the option of the non-listed service, should have been made clear to customers before they signed up.
In addition to its findings on consent, the Court also commented on issues of interpretation and procedure.
The Court of Appeal described PIPEDA as a "compromise both as to substance as to form" consisting of an industry code which was turned into a statute. The Court concluded that interpretation should not be rigorous and must be guided by "flexibility, common sense and pragmatism". In interpreting PIPEDA, a court must strike a balance between the competing interests of individual privacy and the need for commercial access to, and use of, personal information.
The Court of Appeal concluded that no deference should be given to a report of the Commissioner. The application to court is not an appeal but a proceeding de novo. The report of the Commissioner, if put in evidence, can be challenged or contradicted like any other document adduced in evidence.
The decision also includes some interesting comments on the scope of the jurisdiction of the CRTC on matters involving privacy.
For a copy of the decision, visit: