Englander v. Telus Communications Inc., (2004) 328 N.R. 297 (FCA)

• Judge: Décary, Nadon and Malone, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 07, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 328 N.R. 297 (FCA);2004 FCA 387

Englander v. Telus Com. Inc. (2004), 328 N.R. 297 (FCA)

MLB headnote and full text

Temp. Cite: [2004] N.R. TBEd. DE.009

Mathew Englander (appellant) v. Telus Communications Inc. (respondent) and Privacy Commissioner of Canada (intervener)

(A-388-03; 2004 FCA 387)

Indexed As: Englander v. Telus Communications Inc.

Federal Court of Appeal

Décary, Nadon and Malone, JJ.A.

November 17, 2004.

Summary:

Englander was a customer of Telus Com­muni­cations Inc. for local residential tele­phone service. Englander filed a complaint under s. 11 of the Personal Information Pro­tection and Electronic Documents Act (PIPEDA), raising various complaints about how Telus and its affiliates used and dis­closed the names, addresses and telephone numbers which appeared in Telus telephone directories. Englander also complained that the PIPEDA restricted Telus from charging a fee for the provision of its Non-Published Number Service (NPNS). The Privacy Com­mis­sioner of Canada issued a report, includ­ing determinations that Englander's argu­ments were unfounded and that Telus's prac­tices regarding disclosure of information were not unreasonable. The Privacy Com­mis­sioner held also that Telus had authority under a Canadian Radio-Television Telecom­munications Commission (CRTC) tariff to levy a charge for NPNS. Englander applied for a hearing under s. 14 of the PIPEDA regarding the report.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 235 F.T.R. 1, dismissed the application, agreeing with the findings of the Privacy Commissioner. Englander appealed.

The Federal Court of Appeal allowed the appeal in part. The court set aside the deci­sion of the Trial Division and held that part of the complaint against Telus was well-founded. The court held that Telus infringed s. 5 of the PIPEDA in not inform­ing its first-time customers, at the time of enrol­ment, of the primary and secondary purposes for which their personal informa­tion was col­lected and in not informing them at that time of the availability of the NPNS.

Telecommunications - Topic 6472

Commissions - Regulation - Powers - Rates - Fees for unlisted telephone service - [See both Trade Regulation - Topic 9450 ].

Trade Regulation - Topic 9401

Electronic commerce, communications and information - General - The Federal Court of Appeal reviewed the historical back­ground of Part 1 of the Personal Informa­tion Protection and Electronic Documents Act, 2000 - See paragraphs 8 to 17.

Trade Regulation - Topic 9401

Electronic commerce, communications and information - General - The Federal Court of Appeal stated that "the Personal Infor­mation Protection and Electronic Docu­ments Act is a compromise both as to substance and as to form" - See para­graph 39 - The court elaborated on this statement - See paragraphs 40 to 46.

Trade Regulation - Topic 9404

Electronic commerce, communications and information - Application and interpreta­tion of legislation (Personal Information Protection & Electronic Documents Act) - The Federal Court of Appeal discussed the purpose of the Personal Information Pro­tection and Electronic Documents Act (PIPED), 2000 - The court stated, inter alia, that "it is undoubtedly directed at the protection of an individual's privacy; but it is also directed at the col­lection, use and disclosure of personal information by com­mercial organizations. It seeks to ensure that such collection, use and dis­closure are made in a manner that recon­ciles, to the best possible extent, an indivi­dual's pri­vacy with the needs of the organ­ization. There are, therefore, two compet­ing inter­ests within the purpose of the PIPED Act: an individual's right to priv­acy on the one hand, and the commer­cial need for access to personal informa­tion on the other. How­ever, there is also an express recognition, by the use of the words 'reasonable pur­pose,' 'appropriate' and 'in the circum­stances' (repeated in subsection 5(3)), that the right of privacy is not absolute" - See paragraph 38.

Trade Regulation - Topic 9404

Electronic commerce, communications and in­formation - Application and interpreta­tion of legislation (Personal Information Protection & Electronic Documents Act) - The Federal Court of Appeal stated that "even though Part I and Schedule 1 of the [Personal Information Protection and Elec­tronic Documents] 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" - See paragraph 46.

Trade Regulation - Topic 9428

Electronic commerce, communications and in­formation - Remedies - Hearing respect­ing Privacy Commissioner's report - Gen­er­al (incl. nature of hearing) - Under s. 14 of the Personal Information Protection and Electronic Documents Act, a complainant, after receiving the Privacy Commissioner's report respecting the complaint may apply to the court for a hearing relating to any matter in respect of which the complaint was made or that was referred to in the re­port - The Federal Court of Appeal, per Décary, J.A., stated that "the hearing under s. 14(1) of the Act is a proceeding de novo akin to an action and the report of the Com­missioner, if put in evidence, may be challenged or contradicted like any other document adduced in evidence. I may add a further argument in support of this find­ing: according to s. 15 of the Act, the Commissioner may appear as a 'party' at the hearing. To show deference to the Com­missioner's report would give a head start to the Commissioner when acting as a party and thus could compromise the fair­ness of the hearing ..." - See paragraph 48.

Trade Regulation - Topic 9428.1

Electronic commerce, communications and information - Remedies - Hearing respect­ing Privacy Commissioner's report - Status to apply for - Personal Information Protec­tion and Electronic Documents Act (PIPEDA), s. 14 - Englander was a cus­tomer of Telus Communications Inc. for local residential telephone service - Englander filed a com­plaint under s. 11 of the PIPEDA, concern­ing disclosure of in­formation by Telus (the consent issue) and fees for Non-Published Number Ser­vice - The Privacy Commis­sioner of Can­ada (PCC) issued a report wherein En­glander's arguments were rejected - En­glander ap­plied for a hearing under s. 14 of the PIPEDA regarding the report - Telus ar­gued that Englander lacked stand­ing on the consent issue because there was no evi­dence of Telus collecting, using or disclos­ing any of his personal informa­tion without his consent - The Federal Court of Appeal held that Englander had standing pursuant to s. 14 of the PIPEDA - The court stated that once the Commis­sioner had prepared a report, and where his deci­sion to do so had not been challenged, the person who filed the complaint (in this case Englander) became a complainant for the purposes of an application to the court under s. 14 as soon as the report was sent to that individ­ual, whether or not his own personal infor­mation was at stake - See paragraphs 49 to 52.

Trade Regulation - Topic 9428.2

Electronic commerce, communications and information - Remedies - Hearing respect­ing Privacy Commissioner's report - Scope of review - [See Trade Regulation - Topic 9428 ].

Trade Regulation - Topic 9443

Electronic commerce, communications and information - Protection, collection or disclosure of personal infor­mation - When appropriate - Per­sonal Information Protec­tion and Electronic Documents Act (PIPEDA) - Englander was a customer of Telus Com­munications Inc. for local resi­dential tele­phone service - Englander filed a com­plaint under s. 11 of the PIPEDA, ar­guing, inter alia, that Telus did not have valid consent under the PIPEDA to publish its customers' personal information in Telus phone directories - The Privacy Com­mis­sioner of Canada (PCC) issued a re­port wherein Englander's arguments were rejected - Englander applied for a hearing under s. 14 of the PIPEDA regarding the re­port - The hearing judge agreed that Telus had valid consent under the PIPEDA to publish its cus­tomers' personal informa­tion in Telus directories - The Federal Court of Appeal disagreed - The court stated that Telus infringed s. 5 of the PIPEDA in not in­forming its first-time customers, at the time of enrolment, of the primary and secondary purposes for which their per­sonal information was collected and in not informing them at that time of the avail­ability of the NPNS - See para­graphs 53 to 67 and 89.

Trade Regulation - Topic 9444

Electronic commerce, communications and information - Protection, collection or disclosure of personal infor­mation - Con­sent to disclos­ure - [See Trade Regulation - Topic 9443 ].

Trade Regulation - Topic 9450

Electronic commerce, communications and in­formation - Protection, collection or dis­closure of personal infor­mation - Fees charged to protect privacy - Personal Infor­ma­tion Pro­tection and Electronic Docu­ments Act (PIPEDA) - Englander was a cus­­tomer of Telus Com­munications Inc. for local residential tele­phone service - Englander filed a com­plaint under s. 11 of the PIPEDA, arguing that the PIPEDA re­stricted Telus from charging a fee for the provision of its Non-Published Num­ber Ser­vice (NPNS) - The Privacy Com­mis­sion­er of Canada issued a report, stating that Telus had authority under a Canadian Radio-Television Tele­com­munications Com­mission (CRTC) tariff to levy a charge for NPNS - Englander applied for a hearing under s. 14 of the PIPEDA re­garding the report - The hearing judge stated that the court had no jurisdiction over the rate issue as it was a matter with­in the exclusive jurisdiction of the CRTC -The Federal Court of Appeal held that there was concurrent or overlapping juris­diction over the rate issue between the CRTC and the Federal Court - Should the Federal Court or the Court of Appeal de­cide that fees could not be charged, the CRTC would have to revise its tariff ac­cordingly - See paragraphs 68 to 79.

Trade Regulation - Topic 9450

Electronic commerce, communications and information - Protection, collection or disclosure of personal infor­mation - Fees charged to protect privacy - Personal Infor­mation Pro­tection and Elec­tronic Docu­ments Act (PIPEDA) - Englander was a cus­tomer of Telus Com­munications Inc. for local residential tele­phone service - Englander filed a com­plaint under s. 11 of the PIPEDA, arguing that the PIPEDA re­stricted Telus from charging a fee for the provision of its Non-Published Num­ber Ser­vice (NPNS) - The Privacy Com­mis­sion­er of Canada issued a report, stating that Telus had authority under a Canadian Radio-Television Tele­com­munications Com­mission (CRTC) tariff to levy a charge for NPNS - Englander pursued fur­ther proceedings, arguing that Telus, by conditioning an unlisted number on pay­ment of an individ­ual fee contravened clause 4.3.3. of Sched­ule 1 to the PIPEDA - The Federal Court of Appeal rejected Englander's argument - The court held that there was no provision in the PIPEDA which expressly prohibited the imposition of fees - The court noted that on the con­trary the Telecommunica­tions Act contem­plated the imposition of fees for providing privacy services - See paragraphs 80 to 85.

Cases Noticed:

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 37].

Forum des maires de la Péninsule aca­di­enne v. Agence canadienne d'inspection des aliments (2004), 324 N.R. 314; 2004 FCA 263, refd to. [para. 47].

Canadian Food Inspection Agency v. Forum des maires de la péninsule aca­di­enne et al. - see Forum des maires de la Péninsule acadienne v. Agence canadi­enne d'inspection des aliments.

Eastmond v. Canadian Pacific Railway et al. (2004), 254 F.T.R. 169; 2004 FC 852, refd to. [para. 47].

Maheu v. IMS Health Canada et al. (2003), 226 F.T.R. 269; 2003 FCT 1, affd. (2003), 314 N.R. 393; 2003 FCA 462, refd to. [para. 51].

Chiasson v. Canada (2003), 303 N.R. 54; 2003 FCA 155, refd to. [para. 52].

St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; 68 N.R. 112; 73 N.B.R.(2d) 236; 184 A.P.R. 236, refd to. [para. 69].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 69].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Re­gina, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23, refd to. [para. 69].

Commission des droits de la personne et des droits de la jeunesse (Que.) v. Que­bec (Attorney General) (2004), 321 N.R. 335; 2004 SCC 40, refd to. [para. 69].

Quebec (Attorney General) v. Quebec (Human Rights Tribunal) - see Commis­sion des droits de la personne et des droits de la jeunesse (Que.) v. Que­bec (Attorney General).

Workers' Compensation Board (N.S.) v. Mar­tin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301, refd to. [para. 75].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, not appld. [para. 84].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, not appld. [para. 84].

Statutes Noticed:

Personal Information Protection and Elec­tronic Documents Act, S.C. 2000, c. 5, sect. 3 [para. 36]; sect. 11(1) [para. 50]; sect. 14(1) [para. 47]; Schedule 1, sect. 4.3.3 [para. 80].

Authors and Works Noticed:

Canadian Radio-Telecommunications Commission, Report on Directory Sub­scriber Listings and on Unlisted Number Ser­vice, generally [para. 27 et seq.].

Drapeau, M.W., and Racicot, M.A., Feder­al Access to Information and Priv­acy Legisla­tion, Annotated 2004, p. 1558 [para. 17].

Geist, Michael, Internet Law in Canada (3rd Ed. 2002), p. 303 [para. 40].

Perrin, Black, Flaherty and Rankin, Per­sonal Information Protection and Elec­tronic Documents Act, An Annotated Guide (2001), generally [para. 8 et seq.].

Counsel:

Mathew Englander (pro-se), for the appel­lant;

Lisa Warren, for the respondent;

Sean McGee, for the intervener.

Solicitors of Record:

Farris, Vaughan, Wills & Murphy, Van­couv­er, British Columbia, for the respon­dent;

Nelligan O'Brien Payne LLP, Ottawa, On­tario, for the intervener.

This appeal was heard on October 7, 2004, at Vancouver, British Columbia, by Décary, Nadon and Malone, JJ.A., of the Federal Court of Appeal. Décary, J.A., delivered the following judgment for the court at Ottawa, Ontario, on Novem­ber 17, 2004.