Privacy Act (Can.) (Re), 2001 SCC 89, affirming [2000] 3 F.C. 82 (C.A.)

June 2014

Summary: A government institution is allowed to provide personal information to another government institution when authorized by some other statute, as long as the institution takes the objectives of the Privacy Act into consideration.

Facts: Section 108 of the Customs Act at the timeFootnote 1 permitted the Minister of National Revenue to authorize the release of information collected under that Act to other people (subject to conditions that the Minister may authorize). Under that provision, the Minister of National Revenue concluded an agreement with what was then the Canada Employment Insurance Commission to release customs information on travelers outside of Canada for the purpose of administering and enforcing the Employment Insurance Act. The object of this agreement was to catch individuals who travel outside of Canada while receiving employment insurance and fail to report their travel. The Privacy Commissioner filed an application in Federal Court by way of a “stated case” to determine whether this arrangement violated the Privacy Act. The Federal Court concluded that this arrangement violated the Privacy Act, but the Federal Court of Appeal disagreed and overturned that decision. The matter then proceeded to the Supreme Court of Canada.

Result: The Supreme Court of Canada concluded that the agreement did not violate the Privacy Act, and adopted the Federal Court of Appeal’s reasons in their entirety.

Decision: Paragraph 8(2)(b) of the Privacy Act permits a government institution to disclose personal information “for any purpose in accordance with any Act of Parliament or regulation thereunder that authorizes its disclosure.” The Court concluded that s. 108 of the Customs Act was such an Act and, therefore, the disclosure of personal information was permitted.

The main argument of the Privacy Commissioner was that s. 8(2)(b), read in the context of the entire Privacy Act, included an obligation that the information be disclosed only for the purpose for which it was collected or for a use consistent with that purpose. The Court decided not to read that obligation into s. 8(2)(b). The Court concluded that s. 8(2), read as a whole, attested to an intention of Parliament to allow disclosure of personal information to persons who have no connection whatsoever with the disclosing institution and for purposes other than those for which the information was collected. The collection of information by an institution has to be for purposes related to the activity of the institution, but the disclosure can be for other purposes.

Finally, the Court concluded that the Minister of National Revenue had to take into consideration the objectives of the Privacy Act before deciding to release this information under s. 108 of the Customs Act. The Minister satisfied herself that the disclosure sought by the Canada Employment Insurance Commission was for a permissible use, and that no more information than needed by the Commission would be disclosed. The Commission agreed to only use the information for the purposes of the Employment Insurance Act, not to disclose it to any third parties, and to protect it. Therefore, the Minister acted appropriately.

Principles:

Paragraph 8(2)(b) of the Privacy Act permits a government institution to disclose personal information to another institution. The disclosure may be for reasons other than the initial reasons for collecting that information. However, a government institution must still consider the objectives of the Privacy Act before deciding to disclose personal information under that paragraph.

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