In a rare instance of unity between Canada’s federal Conservatives and Liberals, both parties are taking a group of complainants to court over a decision by British Columbia’s privacy commissioner finding that provincial privacy legislation applies to federal political parties.
In separate petitions filed in BC Supreme Court on April 11 and April 12, the Conservative Party of Canada and Liberal Party of Canada seek to quash a decision by the Office of the Information and Privacy Commissioner (OIPC) finding that British Columbia’s Personal Information Protection Act (PIPA) applies to federal political parties. On the heels of that decision, the OPIC found it can investigate the privacy policies and practices of all of Canada’s federal political parties.
According to the Liberal Party’s petition, the PIPA is “constitutionally inapplicable and inoperative” when applied to federal parties based on “interjurisdictional immunity and paramountcy.” The party claims its use, collection, and disclosure of personal information of voters falls under the Canada Elections Act. In addition, it claims Parliament delegated exclusive oversight of federal parties’ privacy practices to the country’s chief electoral officer.
“The Decision places no limits on provinces’ regulation of federal political parties, treating them like any other unincorporated association,” the Liberal Party claims. “The Decision creates an impractical patchwork of rules, regimes and regulations in which the rights of voters and obligation of federal political parties are determined by a different privacy regulator in each province or territory.”
The Conservative Party, in its petition, claims it has a formal privacy policy that has been approved by Canada’s chief electoral officer.
“The Conservative Party does not sell, barter, trade, or lease its donor or supporter lists,” the party’s petition states. “As a federal political party, the Conservative Party shares personal information with local riding associations, candidates, nomination contestants or leadership candidates for the purposes of communicating with those persons.”
The court petitions were spurred by a trio of complaints filed in B.C. in August 2019. The Conservative Party’s petition says that three B.C. residents sought access to their personal information held by the country’s six largest parties including the Conservatives, Liberals, New Democrats, Greens, Bloc Quebecois and the People’s Party of Canada.
The Conservatives, “despite not being bound by PIPA,” provided the trio with their information, according to the petition. But the complainants told the privacy commissioner in December 2019 that the parties’ responses were “inadequate,” leading to the OIPC assigning an investigator a few months later. The investigator informed the Conservatives of their inquiry but didn’t mention the issue of jurisdiction. “The OIPC simply assumed PIPA applied,” the party claims.
When the matter went to a hearing, the Conservatives claim, the procedure was unfair to federal parties since it was “predetermined in favour” of finding provincial privacy legislation applied to parties as it does to “organizations.”
“Parliament has considered the privacy rules governing federal political parties several times over the past two decades and has consistently chosen not to subject them to more general privacy legislation, having recognized that federal political parties perform an essential role in Canada’s democracy and their special needs regarding access to the electorate,” the Liberal Party’s petition states.
Both the Liberals and Conservatives seek to quash the privacy commissioner’s decision, and also want a declaration that the PIPA does not apply to them and “all other federal politcal parties.”
The petitions’ factual bases have not been tested in court and no responses to the cases had been filed by press time.
