With Ontario elections taking place on June 2, some voters may question how provincial political parties use personal information. They may also wonder what federal parties have done with data that voters gave canvassers in the national election, held in September of 2021.
In Ontario, the Privacy Commissioner has no jurisdiction over provincial political parties’ information. Therefore, voters, candidates, donors, party members, staff members and even prospective employees of politicians have little control over how political parties use what they gather.
If the goal of protecting certain personal information held by political parties is desirable, can it be achieved?
The answer “yes” is heard more forcefully in British Columbia than anywhere else in Canada. The province’s Personal Information Protection Act, SBC 2003, c.63 encompasses all organizations. Clearly, provincial parties are subject to scrutiny.
Then the question arises of whether the Constitution Act, 1867, allows B.C. jurisdiction over federal political parties.
The answer is again affirmative, in a decision rendered March 1, 2022, by David Loukidelis, who was the lawyer delegated to hear this case by the Office of Information and Privacy Commissioner.
Mr. Loukidelis’ decision, delivered on March 1, 2022 and detailed in OIPC Order P22-02, surprised the federal parties, which argued against being subject to PIPA.
Whether the decision by the Office of the Information and Privacy Commissioner will withstand scrutiny by the courts is not yet known.
The political parties have filed a judicial review petition in the Supreme Court of British Columbia. A hearing date will be set and the Supreme Court of BC will then decide whether to approve or dismiss the decision of the Office of the Information and Privacy Commissioner.
Why was it not enough for the federal parties to answer themselves?
Three British Columbians asked federal parties about the information gathered about them, personally, how it had been used in the past and would be used in future, and to whom it would be disclosed. The three people making inquiries considered the federal parties’ answers inadequate, and laid complaints with the provincial privacy commissioner. They made no allegation that the national political parties had improperly used information; they wanted more than they received, believing the parties were not sufficiently forthcoming.
Mr. Loukidelis decided that, as Commissioner McEvoy had concluded previously, “the pith and substance of PIPA is the regulation of the collection, use and disclosure of personal information by organizations.”
Given that the province has authority through its powers over property and civil rights, the three people could get answers through the provincial regulator.
British Columbia went through tumultuous related circumstances a few years ago. Think back to Aggregate I.Q. — a B.C.-based data-gathering company that made headlines a few years ago for its involvement in the Facebook/Cambridge Analytical debacle, when it was handling the information of 35 million people in Britain, the United States, British Columbia and other places in Canada.
A 2019 joint investigation by the office of the Privacy Commissioner of Canada and the Office of the Privacy Commissioner of British Columbia concluded that the company had facilitated the improper use by political parties of voters’ personal information. The inquiry concluded that the company had not obtained consent from people whose information it had used and disclosed; and that the company had not stored the data securely. The Commissioners ordered that the company change its practices, and then they monitored the results.
What is the current situation in Ontario?
Provincial political parties. Unlike British Columbia, Ontario does not — and cannot — regulate the information-gathering practices of political parties because it lacks private sector privacy legislation encompassing political parties. Ontario has not yet amended existing privacy laws to address the deficiency.
In Ontario, privacy in the private sector is governed by the federal Personal Information Protection and Electronic Documents Act (PIPEDA), which focuses on commercial activities. Political parties do not fit within the description.
In August 2020 the Ontario Government issued a Discussion Paper on a potential new privacy law for the province’s private sector and, since then, has held consultations; but it has not yet introduced a bill of this kind in the legislature.
Federal political parties. Voters in Ontario have seen the dark side of unfettered access by political parties. Before the 2011 federal elections, a staffer for one of the national parties arranged robocalls to about eight hundred voters in Guelph, Ontario, using his employer’s database. The recorded messages purported to be from Elections Canada. They directed voters to the wrong polling stations. In 2014, the former staffer was found guilty of one charge under the Elections Act for misleading callers.
The case highlighted that, while there is privacy legislation at the federal level in the form of the Privacy Act and PIPEDA, neither statute applies to political parties or anyone working with them. The issue of how politicians use voter information was relegated to the Elections Act in 2018, when federal parties were obligated to develop and post privacy policies on their websites, and show the policies to Elections Canada. All have complied.
Members of the public who are dissatisfied with how their personal information is collected and used by a federal political party can report their concerns to the person in charge of the website within a particular political party. In the alternative, the public can bring an issue to the attention of the chief electoral officer, who can speak to a representative of the party. If Ontarians do not get the answers they want, they will reach a dead end. However, the path would be open if Ontario were to adopt privacy legislation like that of British Columbia, provided the Supreme Court of British Columbia upholds Mr. Loukidelis’ interpretation.
The author, Joy-Ann Cohen, M.A. (journalism), LL.M. (employment law), is a lawyer in Toronto, Canada whose areas of law include employment, immigration, information, and privacy. You can reach her at email@example.com or 416-920-9039 or at jacohenlaw.com.
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