For those of us trying to keep up with the meaning of the newish Personal Information and Protection and Electronic Documents Act, the ruling of the Federal Court of Appeal in Englander v. Telus is interesting for its ennunciation alone. One interesting point to note is a statement in relation to the somewhat daft but perhaps brilliant use of lay language in the key schedule to the statute:
[45] The Court is sometimes left with little, if any guidance at all. Clause 4.3, for example, requires knowledge and consent “except where appropriate.” Clause 4.3.4 sets up a standard of “sensitivity of the information,” only to add that “any information can be sensitive, depending on the context.” Clause 4.3.5 then goes on to say that “[i]n obtaining consent, the reasonable expectations of the individual are also relevant.”
[46] All of this to say that, even though Part 1 and Schedule 1 of the Act purport to protect the right of privacy, they also purport to facilitate the collection, use and disclosure of personal information by the private sector. In interpreting this legislation, the Court must strike a balance between two competing interests. Furthermore, because of its non-legal drafting, Schedule 1 does not lend itself to typical rigorous construction, In these circumstances, flexibility, common sense and pragmatism will best guide the Court.
This is the first higher court ruling which I have seen on the statute and marks the beginning of the interpretation of its principles which will flesh out the meaning of privacy in the private sector in common law Canada. Quebec, as we all know, operates under the civil code system, has had its own statute for a decade and protects privacy in the Quebec Charter of Rights and Freedoms. A more private place.
