Court says federal political parties are subject to BC privacy legislation

The Petitioners (the Liberal Party of Canada, the New Democratic Party of Canada, and the Conservative Party of Canada) were unsuccessful in seeking judicial review of a decision made by the Office of the Information and Privacy Commissioner (OIPC). The OIPC decided that the Petitioners (federal political parties) were subject to British Columbia’s privacy legislation (Personal Information Protection Act) with respect to their collection, use and disclosure of personal information.

Administrative law – Decisions reviewed – Privacy commissioner; Judicial review – Applications – Premature – Legislative compliance – Procedural requirements and fairness – Standard of review – Correctness – Reasonableness; Freedom of information and protection of privacy – Collection of records – Disclosure of records.

Liberal Party of Canada v. Complainants, [2024] B.C.J. No. 870, British Columbia Supreme Court, May 14, 2024, G.C. Weatherill J.

The Respondent complainants are three residents of British Columbia who were concerned that federal political parties (“FPPs”) are collecting personal information without first getting the consent of the persons involved and using that information to create voter profiles, score them as party supporters/friends or otherwise, and sending them political advertising or avoiding communication with them. They made complaints to the Office of the Information and Privacy Commissioner for British Columbia (“OIPC”) in 2019 seeking access to information about them.

In a March 1, 2022 decision of the OIPC (the “Decision”), it determined that British Columbia’s Personal Information Protection Act, S.B.C. 2003, c. 63 [PIPA] is applicable to the collection, use and disclosure of personal information in British Columbia by “FPPs” registered under the Canada Elections Act, S.C. 2000, c. 9 [CEA].

The Petitioners, namely the Liberal Party of Canada, the New Democratic Party of Canada, and the Conservative Party of Canada applied for judicial review to quash the Decision.

The Petitioners also sought declarations that PIPA does not apply to FPPs and that the OIPC does not have jurisdiction over them. In the alternative, the Petitioners applied for an order remitting the Decision back to the OIPC for reconsideration on several bases, including an alleged lack of procedural fairness.

The court considered the legislative context. 

Parliament has previously considered whether to make its general federal privacy legislation, Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 [PIPEDA], applicable to FPPs.  Eventually, in 2018, Parliament enacted Bill C-76, the Elections Modernization Act, S.C. 2018, c. 31, which amended the CEA. Pursuant to the amendments, FPPs were required to provide their respective privacy policies to the Chief Electoral Officer for approval. This was the only federal privacy legislation that applied to FPPs and it did not require FPPs to disclose how they have used personal information or who it has been disclosed to. There was no right of access to personal information held by FPPs.

In 2023, Parliament responded to the Decision by tabling amendments to the CEA through Bill C-47. Bill C-47 received royal assent on June 22, 2023. Section 385.2 of the CEA is now in force, and it addresses the use of personal information by FPPs. 

On March 20, 2024, the federal government introduced Bill C-65, which, if enacted, would further amend the CEA by, inter alia, repealing s. 385.2 and replacing it. It was not yet enacted by the time of this judicial review hearing.

The court then considered the main arguments of the parties.

The Complainants and the Attorney General of Canada argued that the judicial review of the Decision was premature in part because the OIPC had not yet considered the 2023 amendments to the CEA. The court held the application for judicial review was not premature.

The Petitioners alleged breaches of the duty of procedural fairness by the OIPC delegate in the Decision.  The court rejected this argument. 

The court considered the applicable standard of review and held the applicable standard for constitutional questions was correctness. The court also held the applicable standard was reasonableness with respect to the Decision regarding the statutory interpretation of the term “organization” in the PIPA. 

The Petitioners argued that, given the language in the Decision, the delegate assumed that FPPs were “organizations” within the meaning of PIPA and then went on to conclude that they were. The court accepted the complainants’ argument that there is no ambiguity in the word “organization”. Its plain meaning applies to FPPs. The court held it was reasonable for the delegate to extend the definition of “organization” to FPPs. 

The court next considered the doctrine of federal paramountcy which renders provincial law inoperative to the extent of its incompatibility with the federal legislation. This incompatibility can result from (a) an operational conflict between the provincial law and a federal law; or (b) the provincial law frustrating the purpose of the federal law. The court found the Decision was correct in concluding there was no operational conflict and there was no frustration of the purpose of the federal law. 

The court next considered the doctrine of interjurisdictional immunity which protects the “core” of a legislative head of power from being impaired by a government at the other level. The court held the Decision was correct in concluding that the doctrine of interjurisdictional immunity does not apply to oust the application of PIPA to FPPs.

The court held the 2023 amendments to the CEA did not have retroactive or retrospective effect.

The court held the Decision was correct and dismissed the applications for judicial review, with costs against the Petitioners in favour of the Complainants.

The Complainants did not seek costs as against the Attorney General of Canada, the Attorney General of British Columbia, or the OIPC and no costs were awarded against them.

Neither of the Attorneys General sought costs against the Petitioners.

This case was digested by Scott J. Marcinkow of Harper Grey LLP and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact him directly at [email protected].