An adjudicator of the Office of the Information and Privacy Commissioner of Alberta (OIPC) has concluded that the Personal Information Protection Act (Alberta) (PIPA) applies to the Legal Aid Society of Alberta. The decision is of broader interest because it continues the trend to interpret the definition of “commercial activity” broadly, resulting in the application of PIPA to the activities of many non-profit organizations.
PIPA applies to non-profit organizations when engaged in a “commercial activity”. Pursuant to subsection 56(1) of PIPA, a “commercial activity” means any transaction, act or conduct, or any regular course of conduct that is of a commercial character. Pursuant to subsection 56(3) of PIPA, non-profit organizations are subject to PIPA in respect of personal information that is collected, used or disclosed by the non-profit organization in connection with any commercial activity carried out by the non-profit organization.
The Legal Aid Society of Alberta provides legal assistance to individuals in defined areas of the law on a means-test basis. In the case that gave rise to the complaint, the applicant sought assistance from the Legal Aid Society on two separate occasions but was refused representation (although the second time he was provided with limited advice and referral information). The applicant then sought access to his file at the Legal Aid Society. The Legal Aid Society provided copies of the staff lawyers notes from one of the applicant’s interactions, records relating to the appeal of the determination of whether to provide him with representation and confirmed certain other facts. The applicant complained to the OIPC relating to certain alleged failures of the Legal Aid Society in addressing his access request. The adjudicator’s decision did not consider the alleged failures.
Instead, as a preliminary matter, the adjudicator considered whether PIPA applied to the Legal Aid Society. In particular, the adjudicator considered whether the Legal Aid Society was engaged in a commercial activity when collection, using or disclosing the applicant’s personal information. In assessing whether the Legal Aid Society’s activities were commercial, the adjudicator accepted the following principles:
- a commercial activity is of a trade-like or business-like nature;
- an exchange of consideration, while important to establishing a contractual relationship, was not an essential characteristic of a commerical activity;
- profit-making need not be the “predonderant” purpose of the activity to make it commercial;
- the activity need not be commercial in itself, provided that it is of a “commercial character”; that is, an activity that is “more or less commercial” or one that would “appear to be commercial by most accounts”; and
- The fact that an activity confers a public benefit or could also be characterized as charitable was irrelevant to whether it is a commercial activity for the purposes of PIPA.
Focusing on the fact that the Legal Aid Society “meets with prospective clients and decides whether to provide legal services, which might be performed by a private lawyer engaged by the [Legal Aid Society] or by its own staff lawyers, the adjudicator concluded that there was very little to distinguish the Legal Aid Society from a private law practice or business. Both were carrying out a trade or business. Moreover, the adjudicator concluded that it would be arbitrary to treat clients who partially reimbursed the Legal Aid Society for services differently from those who did not.