Conservative Party of Canada

Order P22-02

CONSERVATIVE PARTY OF CANADA

GREEN PARTY OF CANADA

LIBERAL PARTY OF CANADA

NEW DEMOCRATIC PARTY OF CANADA

David Loukidelis QC

March 1, 2022

CanLII Cite:

2022 BCIPC 13

Quicklaw Cite: [2022] B.C.I.P.C.D. No. 13

Summary: Three British Columbia residents asked the four respondent organizations,

which are registered political parties under the federal Canada Elections Act, for

information about what personal information they possessed about them, how it was

used and to whom it had been disclosed. All four organizations responded. The

individuals complained to the OIPC, which opened complaint files. The organizations

objected that, because they are subject to rules in the Canada Elections Act and other

federal statutes relating to collection, use and disclosure of personal information, British

Columbia’s Personal Information Protection Act does not apply to their personal

information practices. The Personal Information Protection Act is a constitutionally valid

law in respect of property and civil rights and matters of a local nature. It is not

constitutionally inapplicable to the organizations because of the constitutional doctrines

of paramountcy or interjurisdictional immunity.

Statutes Considered: Canada Elections Act, SC 2000, c 9; Personal Information

Protection Act, SBC 2003, c 63; The Constitution Act, 1867, 30 & 31 Vict, c 3;

Constitutional Question Act, SBC; Personal Information Protection and Electronic

Documents Act, SC 2000, c 5; ; Canada Not-for-profit Corporations Act, SC 2009, c 23;

Elections Modernization Act, SC 2018, c 31; Telecommunications Act, SC 1993, c 38;

An Act to promote the efficiency and adaptability of the Canadian economy by regulating

certain activities that discourage reliance on electronic means of carrying out commercial

activities, and to amend the Canadian Radio-television and Telecommunications

Commission Act, the Competition Act, the Personal Information Protection and

Electronic Documents Act and the Telecommunications Act, SC 2010, c 23; Electronic

Commerce Protection Regulations, SOR/2013-221; Canadian Charter of Rights and

Freedoms, Part 1, Constitution Act, 1982, enacted as Schedule B to the Canada Act

1982, 1982, c 11 (UK); Personal Information Protection Act, SA 2003, c P-6.5.

Authorities Considered: Courtenay-Alberni Riding Association of the New Democratic

Party of Canada (Re), 2019 BCIPC 34; Kitkatla Band v. British Columbia (Minister of

Small Business, Tourism and Culture), [2002] 2 SCR 146, 2002 SCC 31; OPSEU v.

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Ontario (Attorney General), [1987] 2 SCR 2, 1987 CanLII 71; Canada (Minister of

Citizenship and Immigration) v. Vavilov, 2019 SCC 65; MacKay v. Manitoba, [1989] 2

SCR 357, 1989 CanLII 26; McKay et al v. The Queen, [1965] SCR 798, 1965 CanLII 3;

Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58 (CanLII); College of

Physicians and Surgeons of British Columbia v. British Columbia (Information and

Privacy Commissioner), 2019 BCSC 354; British Columbia (Constituency Office of a

Federal Member of Parliament) (Re), 2007 CanLII 52750; Weatherley v. Canada

(Attorney General), 2021 FCA 158; Rogers Communications Inc. v. Châteauguay (City),

2016 SCC 23; Reference re Environmental Management Act (British Columbia), 2019

BCCA 181; Reference re Environmental Management Act, 2020 SCC 1; References re

Greenhouse Gas Pollution Pricing Act, 2021 SCC 11; Jim Pattison Enterprises Ltd. v.

British Columbia (Workers’ Compensation Board), 2011 BCCA 35; Canadian Western

Bank v. Alberta, [2007] 2 SCR 3, 2007 SCC 22; Alberta (Information and Privacy

Commissioner) v. United Food and Commercial Workers, Local 401, [2013] 3 SCR 733,

2013 SCC 62; British Columbia, Official Report of Debates of the Legislative Assembly

(Hansard), 37^thParl., 4^thSess. Vol. 14, No. 13 (May 1, 2003); Irwin Toy Ltd. v. Quebec

(Attorney General), [1989] 1 SCR 927, 1998 CanLII 829; Ontario (Attorney General) v.

OPSEU, [1987] 2 SCR 2, 1987 CanLII 71 (SCC); Saskatchewan (Attorney General) v.

Lemare Lake Logging Ltd., [2015] 3 SCR 419, 2015 SCC 53; Multiple Access Ltd. v.

McCutcheon, [1982] 2 SCR 161, 1982 CanLII 55 (SCC); Quebec (Attorney General) v.

Lacombe, [2010] 2 SCR 453, 2010 SCC 38; Quebec (Attorney General) v. Canadian

Owners and Pilots Association, [2010] 2 SCR 356, 2010 SCC 39; Thomson Newspapers

Co. v. Canada (Attorney General), [1998] 1 SCR 877, 1998 CanLII 829; Canadian

Reform Conservative Alliance v. Western Union Insurance Corporation, 2001 BCCA

274; Rae v. Canada (Chief Electoral Officer), 2008 FC 246; ; Frank v. Canada (Attorney

General), 2019 SCC 1; Rae v. Canada (Chief Electoral Officer), 2008 FC 246; Opitz v.

Wrzesnewskyj, 2012 SCC 55; Nelson v. Telus Communications Inc., 2021 ONSC 22,

affirmed 2021 ONCA 751; Law Society of British Columbia v. Mangat, [2001] 3 SCR

113, 2001 SCC 67; British Columbia (Attorney General) v. Lafarge Canada Inc, 2007

SCC 23; Canadian National Railway and British Columbia (Delegate of the Director,

Environmental Management Act), Re, 2020 Carswell BC 1398

TABLE OF CONTENTS

Introduction...........................................................................................................3

ISSUES.................................................................................................................5

DISCUSSION........................................................................................................8

Preliminary Matters ...........................................................................................8

Green Party did not make submissions .........................................................8

Request that others be invited to participate..................................................8

Authority to decide constitutional questions...................................................9

Attorney General of Canada chose not to participate ..................................10

Status of the Courtenay-Alberni decision.....................................................11

Outline of the Evidence and Facts...................................................................11

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Complainants...............................................................................................11

Liberal Party.................................................................................................12

Conservative Party ......................................................................................13

NDP.............................................................................................................14

Green Party of Canada................................................................................15

Facts relating to all respondent political parties ...........................................15

Discussion of the issues..................................................................................16

NDP’s contention that PIPA violates the Charter.........................................16

Are the participating political parties organizations as defined in PIPA?......17

The NDP’s argument that it is subject to PIPEDA, not PIPA .......................19

Overview of federal legislation in issue........................................................24

Constitutional Analysis.................................................................................26

Is PIPA within the legislative authority of the British Columbia Legislature?28

Principles that apply in assessing a statute’s validity...................................28

What is PIPA’s true nature, or essence? .....................................................30

PIPA’s legal and practical effects.................................................................32

Does PIPA fall under provincial or federal legislative authority?..................33

Does paramountcy oust PIPA’s application? ...............................................35

Has the “operational conflict” branch of paramountcy been shown to apply?

.....................................................................................................................37

Has the “frustration of purpose” branch of paramountcy been shown to apply?

.....................................................................................................................40

Does the interjurisdictional immunity doctrine apply? ..................................47

CONCLUSION....................................................................................................53

INTRODUCTION

[1]

No one can doubt that political parties are deeply integrated into our

modern form of democratic representative government, notably at the provincial

and federal levels. They establish policy platforms, elect leaders, nominate

election candidates and campaign for office.

[2]

The four parties involved in this proceeding are active nationally and in the

past they each have fielded federal election candidates in one or more British

Columbia electoral districts, including in the federal election held last autumn.

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Each of the four is a “registered party” under the Canada Elections Act (CEA).¹

This decision deals with whether British Columbia’s Personal Information

Protection Act²(PIPA) is constitutionally applicable to their collection, use and

disclosure of personal information in the province.

[3]

By way of background, in an August 26, 2019, letter three residents of

British Columbia (the complainants) sought access, under PIPA, to their personal

information held by the Liberal Party of Canada (Liberal Party), Conservative

Party of Canada (Conservative Party), New Democratic Party of Canada (NDP),

and Green Party of Canada (Green Party).³The complainants also sought

information on the ways in which their personal information had been and was

being used, how their personal information was being used in profiling them, and

to whom their information had been disclosed.⁴These requests were said to be

made “pursuant to our rights under applicable Canadian privacy law”.⁵

[4]

The four parties each responded in the autumn of 2019, disclosing

information about what personal information they held about the complainants.⁶

In a December 3, 2019, letter to the Office of the Information and Privacy

Commissioner for British Columbia (OIPC) from their legal counsel, the

complainants sought an investigation under PIPA into the privacy protection

policies and practices of the four parties. The letter said that the political parties’

responses were “inadequate” and did not satisfy their obligations under section

23(1) of PIPA. The letter gave details about this allegation and enclosed

individual responses from each of the complainants, elaborating on their

concerns.⁷

[5]

It is apparent that the political parties have consistently taken the position

with the OIPC that PIPA does not, for constitutional reasons, apply to them,

leaving the OIPC with no jurisdiction to investigate them in response to these

complaints. Given this, the OIPC issued a notice of hearing on July 26, 2021, the

objective of which was to enable the parties’ positions on PIPA’s applicability to

be addressed. This decision, which flows from that hearing, is entirely concerned

¹SC 2000, c 9.

²SBC 2003, c 63.

³As noted later, this request was also made to other federal political parties, but they are not

involved in this proceeding.

⁴Complainants’ initial submission, paragraph 4; stated facts, paragraphs 1-3. A copy of the letter

forms Exhibit 34 of the affidavit sworn by one of the complainants (“complainant affidavit”), which

forms part of the complainants’ submissions here.

⁵The letter also referred to “the common contractual promises” the political parties were alleged

to have made through their privacy policies.

⁶The political parties’ responses are found in Exhibits 35-47 of the complainant affidavit.

⁷The complaint letter indicated that the complainants had also made requests to the Bloc

Québécois and the People’s Party of Canada but explicitly left open the question of whether an

investigation should be opened respecting those two parties. The OIPC has not opened an

investigation file for either of those political parties and they are not implicated in this decision.

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with whether PIPA can, constitutionally speaking, validly apply to these four

political parties.

[6]

As is explained below, in constitutional terms, PIPA’s true substance is as

a law in respect of property and civil rights and in relation to local matters. It is

validly enacted under the Constitution Act, 1867.⁸Nor is PIPA’s application to

these four political parties ousted by the constitutional doctrines of

interjurisdictional immunity or paramountcy.

[7]

It follows that an OIPC investigation of the complaints about the

respondent parties can proceed.

ISSUES

[8]

It appears that early in the OIPC’s investigation at least some of the

political parties took the position that PIPA does not apply to them and that the

OIPC has no jurisdiction to investigate the complainants’ allegations. To bring

their objections into focus and address them, I stated an issue to be decided,

doing so in as neutral a fashion as I could while being aware that the objections

to PIPA’s application could only be constitutional in nature:

With respect to each of the Liberal Party of Canada, the Conservative Party

of Canada, the New Democratic Party of Canada and the Green Party of

Canada, on the basis that each of them is an “organization” as defined in

the Personal Information Protection Act (British Columbia) (PIPA), does

PIPA apply to that political party’s collection, use or disclosure of personal

information, including through its registered agent appointed under the

Canada Elections Act (Canada), through electoral district associations

associated with it under the Canada Elections Act, or through other

representatives of that political party?⁹

[9]

The Liberal Party suggested in response that the participants should be

given an opportunity to make submissions on the issues to be determined and, to

the extent determination of the issues required that notice be given to others,

notice should be given.¹⁰The Conservative Party agreed.¹¹The NDP did not

comment on the stated issue but said “there must an appropriate process to

⁸The Constitution Act, 1867, 30 & 31 Vict, c 3.

⁹July 26, 2021, letter to all participants. In framing this issue, I wanted to be careful not to

preclude anyone from making submissions on other grounds. In Courtenay-Alberni Riding

Association of the New Democratic Party of Canada (Re), 2019 BCIPC 34 [Courtenay-Alberni],

for example, the respondent NDP-affiliated organization argued—as is argued here—that the

federal Personal Information Protection and Electronic Documents Act applied to it because it

was an “organization” as defined in PIPEDA.

¹⁰August 10, 2021, letter from counsel to the Liberal Party.

¹¹August 16, 2021, letter from counsel to the Conservative Party.

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resolve any controverted facts prior to proceeding.”¹²The complainants merely

submitted that the stated issue, and the process for submissions, need not be

changed.

[10] The Conservative Party proposed amendments to the issue to be

decided.¹³It proposed expanding the above question to include all federal

political parties, not just the four political parties subject to this proceeding. It also

proposed changing the issue to state that each federal party is an “organization”

within the meaning of both PIPA and the Personal Information Protection and

Electronic Documents Act¹⁴(PIPEDA). The Conservative Party also proposed to

explicitly ask whether PIPA is “ousted by the operation of a comprehensive

federal regulatory scheme applicable to the activities of political parties, which

includes PIPEDA, the Canada Elections Act (Canada), and other legislation”.

Last, it would have removed reference to a political party acting through others,

i.e., by removing the words “including through its registered agent appointed

under the Canada Elections Act (Canada), through electoral district associations

associated with it under the Canada Elections Act, or through other

representatives of that political party?”

[11] In the end, the NDP, the Liberal Party, and the Conservative Party served

notices under the Constitutional Question Act¹⁵on the Attorney General of

Canada and the AGBC.¹⁶

[12] The NDP gave notice of these questions to the AGBC and the Attorney

General of Canada:

1. To the extent that PIPA purports to apply to federally registered political

entities, is it ultra vires the Province by operation of s. 41 of the Constitution

Act of 1867?

2. Is PIPA inapplicable to federally registered political entities because the

Canada Elections Act, the Personal Information Protection and Electronic

Documents Act and other applicable federal laws are paramount?

¹²August 10, 2021, letter from counsel to the NDP. The NDP has not, including in its submissions

and affidavit evidence, identified any “controverted facts”, disputed any of the stated facts, or

disputed the evidence adduced by the complainants, the Liberal Party or the Conservative Party.

¹³August 16, 2021, letter from counsel to the Conservative Party.

¹⁴SC 2000, c 5.

¹⁵RSBC 1996, c 68.

¹⁶In an October 22, 2021, letter, the Liberal Party’s counsel interpreted my decision not to invite

the parties to comment on the issue “to mean that the parties are to serve our notices of

constitutional question on the Attorneys General with our submissions and affidavit on October

29”. The Conservative Party, in an October 25, 2021, letter from its counsel, said that it

understood my decision the same way, i.e., “that the parties are to serve their notices of

constitutional question on the Attorneys General with our submissions and affidavit evidence on

October 29.” Both parties did so.

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3. To the extent that PIPA purports to apply to federally registered political

parties, do its provisions amount to unjustified limits on the right to vote and

the freedom of expression guaranteed by the Charter?¹⁷

[13] In addition, the Liberal Party has argued that it is not an “organization”

within the meaning of PIPA. The NDP also argues that, because PIPEDA applies

to it, PIPA does not apply to it by virtue of section 3(2)(c) of PIPA.¹⁸

[14] The Conservative Party’s notice of constitutional question raised the

question of whether, to the extent PIPA purports to apply to federally registered

political entities, it is outside British Columbia’s legislative competence by

operation of section 41 of the Constitution Act, 1867. It also stated the question

of whether PIPA is inapplicable to such entities because the CEA, PIPEDA “and

other applicable federal laws are paramount”.¹⁹

[15] The Liberal Party’s notice of constitutional question stated the questions

as whether PIPA is “inoperative with respect to federal political parties by reason

of federal paramountcy” and, in the alternative, whether “PIPA is inapplicable to

federal political parties based on the doctrine of interjurisdictional immunity.”²⁰

The Liberal Party also submits that it is not an “organization” subject to PIPA.

[16] The issues discussed below were therefore known to the parties before

they made their submissions, and they have been able to respond to each

others’ arguments. In the end, while I did not invite the participants to comment

on the issue as I stated it, all participants have had the opportunity to state their

issues—and there is considerable commonality there—to make their case, with

evidence and legal argument, and to respond to each other and the AGBC.²¹No

one has sought, since the completion of submissions, to raise other issues or to

be heard further.

[17] The issues considered below are as follows:

1. Is a federal political party an “organization” within the meaning of that term

in PIPA, such that PIPA purports to apply to a federal political party? If so,

does section 3(2)(c) of PIPA oust its application?

¹⁷October 15, 2021, letter from NDP counsel.

¹⁸NDP reply, paragraph 5.

¹⁹October 29, 2021, letter from counsel to the Conservative Party to the Attorney General of

Canada and AGBC.

²⁰October 29, 2021, letter from counsel to the Liberal Party to the Attorney General of Canada

and AGBC.

²¹In an August 17, 2021, letter to the participants I underscored that they would have an

opportunity to reply to the others’ submissions and evidence, while providing their own

evidence.²¹

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2. Is PIPA validly enacted under a provincial head of legislative authority under

the Constitution Act, 1867?

3. If it is validly enacted, is PIPA inapplicable to the participating federal

political parties by virtue of the constitutional doctrine of paramountcy?

4. If it is validly enacted, is PIPA inapplicable to the participating federal

political parties by virtue of the constitutional doctrine of interjurisdictional

immunity?

5. Does PIPA unconstitutionally infringe the right to vote, or the freedom of

political expression, as guaranteed by the Charter?

DISCUSSION

Preliminary Matters

[18] Some preliminary matters are addressed below.

Green Party did not make submissions

[19] Although the OIPC gave the Green Party notice of this process over the

course of several months, the Green Party did not engage and has not made

submissions or provided evidence.

Request that others be invited to participate

[20] The Conservative Party asked that the Chief Electoral Officer of Canada

and the Privacy Commissioner of Canada be invited to provide submissions

given, the Conservative Party says, the importance of the issues for matters

within the scope of their responsibilities.²²The Conservative Party also said it “is

concerned that the limited range of participants is not reflective of the spectrum

of interests (in particular, national interests) that are affected by any decision”.²³It

noted that, of the 22 federally registered political parties, only four are

respondents in this proceeding.²⁴The Liberal Party echoed this concern,

asserting that, because this decision “affects all federally registered parties”,

notice ought to have been given to all federal political parties.²⁵

[21] The Conservative Party later elaborated that

… the CPC is of the view that both the Privacy Commissioner of Canada

and the Chief Electoral Officer of Canada should be provided with notice of

²²This is noted at paragraph 22 of the Conservative Party’s initial submission.

²³Conservative Party’s initial submission, paragraph 12.

²⁴Ibid., paragraph 11.

²⁵Liberal Party’s reply, paragraph 40.

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this hearing and be given an opportunity to make their views known. The

privacy issues the current process proposes to impact in this matter arise

in the context of the Canadian democratic process and cannot be divorced

from it; it is therefore essential that representatives from these offices be

given the opportunity to participate.²⁶

[22] As the Conservative Party has acknowledged, whether a person is to be

given notice under PIPA turns on whether the Information and Privacy

Commissioner (Commissioner) considers it appropriate to do so.²⁷Only the four

parties named above are the subject of the complaint files that the OIPC has

opened. Other federal political parties, even those that might collect, use, or

disclose personal information in British Columbia, are not to my knowledge the

subjects of those files.

[23] This decision is solely concerned with the participating parties’ threshold

objection—in response to a complaint about them, not about other political

parties—that PIPA is constitutionally inapplicable to them, such that the OIPC

cannot investigate the allegations against them. Their challenge crystallizes

around a well-defined set of constitutional issues and the participating parties

have provided extensive legal argument, and evidence, about whether they are

subject to PIPA, as have the complainants. The participating parties have each

notified the Attorney General of British Columbia (AGBC) and the Attorney

General of Canada, as required by the Constitutional Question Act, and the

AGBC has participated.

[24] In these circumstances, I did not consider it appropriate to invite all other

federally registered political parties to make submissions on the question of

whether PIPA is constitutionally inapplicable to the complaint respondents, the

Conservative Party, the Liberal Party, the NDP and the Green Party. Nor did I

consider it appropriate, given the opportunity for the two attorneys general to

participate on the constitutional issues, to, as suggested, invite two federal

regulatory agencies, the Privacy Commissioner of Canada and the Chief

Electoral Officer of Canada, to make submissions on whether PIPA is

constitutionally inapplicable to these particular parties.

Authority to decide constitutional questions

[25] The political parties have said that the OIPC has no jurisdiction to

investigate them. They have not taken issue with the jurisdiction to decide the

constitutional issues, while the AGBC submits that “the Commissioner has

jurisdiction to decide the constitutional issues.”²⁸

²⁶October 25, 2021, email from counsel to the Conservative Party.

²⁷PIPA, section 48(1)(a).

²⁸AGBC submission, paragraph 14.

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[26] The Commissioner has delegated to me the “powers, duties and functions

contained in sections 36 through 39 and 45 through 52 of PIPA.”²⁹Under section

50, that authority extends to deciding “all questions of fact and law”. This raises

the presumption that the Commissioner has the authority to decide constitutional

issues. As Commissioner McEvoy noted in a case that involved similar

constitutional questions about PIPA’s application:

[31] … The Supreme Court of Canada has held that, in deciding whether a

tribunal has the authority to decide constitutional issues, the “essential

question” is whether its “empowering legislation implicitly or explicitly

grants to the tribunal the jurisdiction to interpret or decide any question of

law. If it does, the tribunal will be presumed to have the concomitant

jurisdiction to interpret or decide” a constitutional question. Section 50

authorizes me to decide all questions of law arising in the course of an

inquiry. I am satisfied that this authority extends to my deciding the

organization’s jurisdictional, or threshold, challenge to PIPA’s application

and thus that I have the jurisdiction to decide the constitutional questions

the organization has raised.³⁰

[27] While it is true the authorities that the Commissioner cited relate to the

jurisdiction to decide issues related to the Canadian Charter of Rights and

Freedoms³¹(Charter), having considered the decisions cited in Courtenay-

Alberni, I agree with his conclusion that PIPA confers authority on the

Commissioner, and therefore a delegate of the Commissioner, to decide the

constitutional questions addressed here.

Attorney General of Canada chose not to participate

[28] The Attorney General of Canada declined the opportunity to be heard on

the constitutional questions, as was also the case in Courtenay-Alberni. As the

Supreme Court of Canada has said, courts (and of course statutory adjudicators)

“should be particularly cautious about invalidating a provincial law when the

federal government does not contest its validity”.³²This is, of course, very far

from determinative, but this does, as the Supreme Court said, “invite the Court to

²⁹June 25, 2021, delegation instrument.

³⁰Courtenay-Alberni Riding Association of the New Democratic Party of Canada (Re), 2019

BCIPC 34 [Courtenay-Alberni], footnotes omitted. In reaching this conclusion, Commissioner

McEvoy cited Paul v. British Columbia (Forest Appeals Commission), [2003] 2 SCR 585, 2003

SCC 55; Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers'

Compensation Board) v. Laseur, [2003] 2 SCR 504, 2003 SCC 54; and Rio Tinto Alcan Inc. v.

Carrier Sekani Tribal Council, [2010] 2 SCR 650, 2010 SCC 43.

³¹Canadian Charter of Rights and Freedoms, Part 1, Constitution Act, 1982, enacted as

Schedule B to the Canada Act 1982, 1982, c 11 (UK).

³²Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2

SCR 146, 2002 SCC 31 [Kitkatla Band], at paragraph 72.

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exercise caution before it finds that the impugned provisions” of a statute “are

ultra vires the province.”³³

Status of the Courtenay-Alberni decision

[29] As will be seen later, the participants have variously relied on or criticized

the Commissioner’s decision in Courtenay-Alberni and it is appropriate to

comment on this here. Administrative tribunals are not strictly speaking bound by

their earlier decisions. It is equally true, however, that consistency in tribunal

decisions is highly desirable and earlier decisions should not be departed from

lightly.³⁴While I have had appropriate regard for the helpful reasons of

Commissioner McEvoy in Courtenay-Alberni, I have for my own reasons, based

on the arguments and evidence at hand, decided that PIPA is applicable to these

political parties.

Outline of the Evidence and Facts

[30] This section sets out key facts on which this decision relies.³⁵

Complainants

[31] The complainants’ initial request to the political parties, which has led to

this decision, discloses that they each reside in British Columbia.³⁶As already

noted, their request was for access to their personal information in the

possession of leading federal political parties, as well as information about the

³³Ibid., at paragraph 73. Also see OPSEU v. Ontario (Attorney General), [1987] 2 SCR 2, 1987

CanLII 71, at pages 19-20.

³⁴As the Supreme Court of Canada said in Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65, at paragraph 131: “Where a decision maker does depart from

longstanding practices or established internal authority, it bears the justificatory burden of

explaining that departure in its reasons. If the decision maker does not satisfy this burden, the

decision will be unreasonable” (original emphasis).

³⁵The facts set out below in relation to the complainants and each of the political parties are

drawn from the evidence they submitted, and, in only the instances expressly noted below, from

stated facts. As for stated facts, the July 26, 2021, hearing notice to the participants set out

proposed stated facts and invited submissions on them. The Liberal Party offered some changes,

as did the complainants and the Conservative Party. Again, in an August 17, 2021, letter to the

complainants and the political parties, I assured them that they could provide other evidence as

part of their submissions, and they have all done so. Their evidence underpins this decision and,

in the end, unless a fact set out below is expressly described as a stated fact, the facts stated in

the July 26, 2021, hearing notice form no part of this decision.

³⁶This is a reasonable inference based on the complainant affidavit, which indicates that each of

the three complainants resides in British Columbia. Specifically, page 3 of Exhibit “34” to the

complainant affidavit, which is found at page 460 of that affidavit, is a copy of the complainants’

August 26, 2019, letter to the parties. It bears the names of each of the complainants and British

Columbia civic addresses for each of them are set out.

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ways in which that information was being used, and to whom it had been

disclosed.³⁷

Liberal Party

[32] The Liberal Party is an unincorporated association of registered members

and is a registered party under the CEA.³⁸Its chief agent under the CEA is The

Federal Liberal Agency, a corporation incorporated under the Canada Not-for-

profit Corporations Act³⁹and is registered in each territory and province where

that is required.⁴⁰The Liberal Party also has electoral district associations in

each riding across Canada and these are registered under the CEA.⁴¹The

Liberal Party fielded candidates in each British Columbia electoral district during

the 2021 federal election.⁴²

[33] The Liberal Party relies on volunteers across the country, who are

represented on volunteer advisory boards—which it says are not legal entities—

from each territory and province.⁴³

[34] Like all eligible federal political parties, the Liberal Party receives copies of

the list of electors as provided in the CEA.⁴⁴It follows Elections Canada’s

guidelines on use of the personal information in those lists.⁴⁵

[35] The Liberal Party says it uses personal information to engage with voters,

understand their interests and priorities and “mobilize democratic participation.”⁴⁶

Its collection, use and disclosure of personal information is for “political purposes

that are central to the Liberal Party’s roles as set out in its Constitution”, and is

essential to achieving the “primary purpose of electing candidates to the House

of Commons”.⁴⁷

³⁷Complainant affidavit, paragraph 58, and Exhibit “34”.

³⁸Paragraph 2 of the October 28, 2021, affidavit of Jessica Cardill (Cardill affidavit). The Liberal

Party also noted that it is not affiliated with the BC Liberal Party, which is separate and distinct:

paragraphs 12-14 of the Cardill affidavit.

³⁹SC 2009, c 23. Paragraphs 8-10 of the Cardill affidavit confirm that The Federal Liberal Agency

is the Liberal Party’s chief agent under the CEA.

⁴⁰This entity is registered in British Columbia under the Societies Act, SBC 2015, c 18. Stated

facts, paragraph 6. This is not disputed by the Liberal Party in its evidence or argument.

⁴¹Cardill affidavit, paragraphs 5 and 6.

⁴²October 28, 2021, affidavit sworn by one of the complainants (complainant affidavit),

paragraph 10.

⁴³Cardill affidavit, paragraphs 8 and 9.

⁴⁴Ibid., paragraph 15.

⁴⁵Ibid., paragraphs 16 and 17.

⁴⁶Cardill affidavit, paragraph 24.

⁴⁷Ibid., paragraph 24.

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[36] As the CEA requires, the Liberal Party has a privacy policy, which has

been filed with Chief Electoral Officer under the CEA.⁴⁸

[37] In letters to each of the complainants dated October 1, 2019, the Liberal

Party advised them of the personal information that the Liberal Party possessed.

In response to the complainants’ December 3, 2019, letter to the OIPC asking for

an investigation, the Liberal Party, in undated letters sent to counsel to the

complainants on October 2, 2020, provided them with copies of their personal

information. On December 23, 2020, the Liberal Party told the OIPC that the

personal information provided in these letters was all the personal information of

the complainants held in Liberal Party databases.⁴⁹

Conservative Party

[38] The Conservative Party is an unincorporated association of its members

and is a registered political party under the CEA.⁵⁰The Conservative Fund

Canada, a corporation incorporated or continued under the Canada Not-for-profit

Corporations Act, is the registered agent of the Conservative Party under the

CEA.⁵¹The Conservative Party has registered electoral district associations

throughout Canada, including in each British Columbia electoral district.⁵²The

Conservative Party fielded candidates in each British Columbia electoral district

during the 2021 federal election.⁵³

[39] By way of September 30, 2019, letters to the complainants, the

Conservative Party provided copies of their personal information in its

database.⁵⁴It also provided information about how their personal information was

used and to whom it was disclosed, which the Conservative Party says it did

voluntarily, as it is “not bound by privacy statutes” and “the matter should have

ended there.”⁵⁵

[40] The Conservative Party says it complies with the CEA’s provisions for

sharing of lists of voters, and restrictions on use of that information.⁵⁶The

Conservative Party also says that federal political parties and candidates are

entitled to receive information disclosing which individuals voted, which enables

⁴⁸Liberal Party initial submission, paragraph 40.

⁴⁹Stated facts, paragraphs 8 and 9. This is not disputed by the Liberal Party in its evidence or

argument.

⁵⁰Conservative Party’s initial submission, paragraph 7.

⁵¹Ibid.

⁵²Conservative Party’s submission, paragraph 9; also see the complainant affidavit, paragraph

21.

⁵³Ibid., paragraph 25.

⁵⁴Conservative Party’s initial submission, paragraph 14.

⁵⁵Ibid., paragraph 14.

⁵⁶Paragraph 15 of the October 29, 2021, affidavit of Trevor Bailey, the Conservative Party’s

Director of Membership (Bailey affidavit).

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parties to identify who did not vote in each riding, enabling parties to encourage

voters who have not yet voted to do so.⁵⁷

[41] The Conservative Party has a privacy policy that it has filed under the

CEA.⁵⁸

[42] Regarding oversight of its privacy practices, the Conservative Party says

that “the Chief Electoral Officer has the ability to enforce compliance with the

CEA, including levying penalties and deregistering parties. These sanctions are

applicable to the privacy provisions in the CEA.”⁵⁹

NDP

[43] As the NDP’s constitution suggests, the NDP is an unincorporated

association of members of the NDP.⁶⁰The New Democrats of Canada

Association, a federal not-for-profit corporation, is the NDP’s registered agent

under the CEA.⁶¹

[44] The NDP is a registered political party under the CEA and has registered

electoral district associations in every province and territory,⁶²including in each

of British Columbia’s electoral districts.⁶³The NDP fielded candidates in all British

Columbia electoral districts in the 2021 federal election.⁶⁴

[45] The NDP conducts voter outreach, including by in-person voter

canvassing, phone calls, text messaging and “using issues to solicit members of

the public to join our contact lists.”⁶⁵These and other activities—such as

maintaining party membership and fundraising—include use of the electoral list

under the CEA, “as well as collecting personal information directly from potential

voters.”⁶⁶The NDP notes that Elections Canada gives federal political parties

copies of the list of electors, which includes names and addresses.

[46] On July 17, 2020, the NDP sent responses to the complainants,

describing what personal information the NDP possessed for each of them, and

referred them to its privacy policy. The NDP says that it has developed

⁵⁷Conservative Party’s submission, paragraph 31, and paragraph 11 of the Bailey affidavit.

⁵⁸Bailey affidavit, paragraph 12.

⁵⁹Ibid., paragraph 14.

⁶⁰NDP constitution: https://xfer.ndp.ca/2016/documents/NDP-CONSTITUTION-EN.pdf (accessed

July 22, 2021). Stated facts, paragraph 15. This is not disputed by the NDP in its evidence or

argument.

⁶¹Stated facts, paragraph 17. This is not disputed by the NDP in its evidence or argument.

⁶²NDP’s initial submission, paragraph 7.

⁶³Complainant affidavit, paragraph 31.

⁶⁴Complainant affidavit, paragraph 33.

⁶⁵Affidavit of Jesse Strean Calvert (Calvert affidavit), paragraph 3.

⁶⁶Ibid.

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“significant internal protections” for personal information.⁶⁷Its privacy policy

states that it “is in strict compliance with Canadian privacy principles” and

obligations under the CEA.⁶⁸

Green Party of Canada

[47] The Green Party is an unincorporated association of members of the

Green Party. It is a registered political party under the CEA.⁶⁹The Green Party of

Canada Fund, a corporation incorporated or continued under the Canada Not-

for-profit Corporations Act, is the registered agent of the Green Party under the

CEA.⁷⁰

[48] The Green Party has 37 electoral district associations in British

Columbia.⁷¹During the 2021 federal election, the Green Party fielded candidates

in 35 of British Columbia’s electoral districts.⁷²

[49] On September 16, 2019, the Green Party advised the complainants of

their personal information in its databases.⁷³

Facts relating to all respondent political parties

[50] Each of the political parties provides funding to at least some of its

electoral district associations in British Columbia.⁷⁴

[51] Elections Canada provides the political parties with access to personal

information through copies of the list of electors.⁷⁵

[52] Each of the parties involved has, as the CEA requires, submitted to the

Chief Electoral Officer of Canada the party’s policy for the protection of personal

information, and has published their policies on an Internet site, as the CEA

requires.⁷⁶

⁶⁷Ibid., paragraphs 3-6.

⁶⁸Exhibit 1 to the Calvert affidavit.

⁶⁹Stated facts, paragraph 21, and complainant affidavit.

⁷⁰Again, this is a stated fact, noting that the complainant affidavit also provides relevant

evidence.

⁷¹Complainant affidavit, paragraph 36.

⁷²Ibid., paragraph 40.

⁷³Ibid., paragraph 59.

⁷⁴Complainants’ initial submission, paragraph 13, and Appendix “A”, citing the complainant

affidavit, paragraph 44.

⁷⁵Complainant affidavit, paragraphs 43(a), (b) and (c), complainants’ initial submission,

paragraph 12. This is also attested to in the political parties’ evidence.

⁷⁶NDP: paragraph 4 of the Calvert affidavit. Liberal Party: paragraphs 19 and 21 of the Cardill

affidavit (and paragraph 26 of the stated facts as to Internet publication). Conservative Party:

paragraphs 3 and 12 of the Bailey affidavit (and paragraph 26 of the stated facts as to Internet

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[53] Each of them conducts canvassing of electors in British Columbia during a

federal election period, including through door-to-door or telephone canvassing.⁷⁷

[54] To sum up, each of the political parties involved in this proceeding is an

unincorporated association, they each have affiliated organizations that are

active in British Columbia on its behalf, they each collect personal information

from Elections Canada that is about residents of British Columbia, and they each

conduct canvassing activities in British Columbia. Further, each of the parties is

registered with Elections Canada and each of them has a privacy policy filed in

compliance with the CEA.

Discussion of the issues

NDP’s contention that PIPA violates the Charter

[55] As noted earlier, the NDP contends that PIPA violates the Charter. It

submits that “the provisions of PIPA represent unjustified limits on the right to

vote and freedom of political expression guaranteed by the” Charter.⁷⁸

[56] In its reply, however, the NDP agrees with the AGBC that the Charter

issues would be better considered later and reserves the right to make

submissions at a later stage.⁷⁹The AGBC submits that the NDP’s Charter claim

should be dismissed because the NDP lacks standing. The AGBC argues in the

alternative that the framework in Doré v. Barreau du Québec⁸⁰should apply,

meaning that the appropriate time to carry out that analysis is later, when the

merits of the complaints are considered.⁸¹

[57] The complainants engage on the merits of some Charter issues but also

suggest that the NDP’s Charter claims merit rejection because the NDP has not

offered an evidentiary foundation and because the NDP lacks standing.⁸²The

complainants concede that Charter issues must not be decided in a factual

vacuum.⁸³

[58] I respectfully agree with Commissioner McEvoy’s statement in Courtenay-

Alberni that it “would undoubtedly be an error of law” to consider the Charter

publication). Green Party: stated facts, paragraph 26. No one has disputed paragraph 26 of the

stated facts.

⁷⁷Stated facts, paragraph 28. None of the political parties disputed this stated fact.

⁷⁸NDP's initial submission, paragraph 6.

⁷⁹NDP reply, paragraph 56.

⁸⁰2012 SCC 12.

⁸¹AGBC submission, paragraph 105.

⁸²Complainant’s reply, paragraph 82.

⁸³Ibid., paragraph 83.

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question “in a factual vacuum” and, like him, I decline to do so.⁸⁴The issue of

whether the NDP has standing to raise Charter issues, and the question of

evidentiary sufficiency, will remain to be determined, if necessary, at a later

stage.⁸⁵

Are the participating political parties organizations as defined in PIPA?

[59] The Liberal Party says that neither it nor its registered agent, The Federal

Liberal Agency of Canada, is an “organization” as defined by PIPA.⁸⁶The Liberal

Party acknowledges that, in Courtenay-Alberni, Commissioner McEvoy

concluded that the association involved in that case was an “organization” even

though it was constituted for federal electoral purposes and was active in that

arena. Taking issue with this, the Liberal Party contends that PIPA must be

interpreted in a way that is “presumptively constitutional”, and to decide that a

federal political party is an “organization” under PIPA would be “an

unconstitutional interpretation”.⁸⁷

[60] The Liberal Party says that “PIPA should be interpreted as not extending

to federal elections matters”.⁸⁸It says the relevant question is whether the

inclusion in PIPA’s definition of “organization” of the further term “unincorporated

association” should be read to include federal political parties.⁸⁹It argues that the

required constitutional interpretation leads to the conclusion that these parties

are not organizations as defined in PIPA. The Liberal Party argues that, while

PIPA is applicable to the “B.C. private sector”, it cannot constitutionally extend to

federal political parties,⁹⁰and PIPA’s definition of “organization” must

constitutionally exclude federal political parties because only Parliament can

regulate federal elections.⁹¹

[61] In taking this position, the Liberal Party relies on McKay et al v. The

Queen,⁹²a 1965 decision in which the Supreme Court of Canada decided that a

municipal sign bylaw should not be interpreted as applying to federal election

signs. The Supreme Court said that “if words in a statute are fairly susceptible of

two constructions of which one will result in the statute being intra vires and the

other will have the contrary result the former is to be adopted.”⁹³Applying this

⁸⁴Courtenay-Alberni, paragraph 91 (citing MacKay v. Manitoba, [1989] 2 SCR 357, 1989 CanLII

26, at page 366.

⁸⁵This is consistent with Courtenay-Alberni, in which Commissioner McEvoy declined, at

paragraphs 89-92, to decide Charter issues in the context of his jurisdictional ruling that PIPA

applied to the organization.

⁸⁶Liberal Party’s initial submission, paragraph 56.

⁸⁷Ibid., paragraphs 58-59.

⁸⁸Ibid., paragraph 61.

⁸⁹Liberal Party’s reply, paragraphs 14-17.

⁹⁰Ibid.

⁹¹Liberal Party’s initial submission, paragraphs 60-61.

⁹²[1965] SCR 798, 1965 CanLII 3 [McKay].

⁹³McKay, at page 804.

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approach, the Supreme Court’s majority concluded that it could not have been

the municipal council’s intention to enact a bylaw that extended to federal

election signs.

[62] The AGBC responds that this is not the proper approach.⁹⁴A statute of

general application is not ultra vires a province’s legislative competence because

it allegedly applies in a constitutionally invalid manner. The proper first step,

rather, is to decide whether the law is within the legislative authority of the

province, i.e., to decide if the statute is constitutionally valid. If it is, the next step

is to assess, using the principles of interjurisdictional immunity and paramountcy,

whether the law can validly apply in the circumstances. This submission is

persuasive.

[63] It bears mention that, in his majority reasons, Taschereau C.J. was careful

to say that the validity of the bylaw or of the enabling provincial legislation was

not challenged, and added this:

The discussion of the extent to which provincial legislation may affect the

carrying on of a political activity in the federal field was raised by counsel

and has been pursued in these reasons merely to assist in arriving at the

true construction of the by-law. That question of construction is in turn

confined to ascertaining whether the general words used, which in their

natural meaning do not merely regulate but forbid the display of signs at all

times, were intended to have effect so as to forbid during the actual period

of an election to Parliament the display of a sign of the sort described in the

charge on which the appellants were convicted.⁹⁵

[64] In his forthright dissenting reasons, Martland J. observed for himself and

three other justices that the “essential feature of the by-law in question here is

that it is of general application and, admittedly, valid.”⁹⁶He was not persuaded by

the view that, “even though Parliament has not legislated on this subject, the field

of proceedings at federal elections is one of federal jurisdiction and cannot be

affected by provincial legislation, even though it is so affected only

incidentally.”⁹⁷

[65] More recently, in joint reasons, Gascon, Côté and Rowe JJ., commented,

in Desgagnés Transport Inc. v. Wärtsilä Canada Inc., that “if the text of the

legislation is capable of bearing a meaning that is constitutionally valid, then the

courts will give it that meaning”.⁹⁸As the British Columbia Court of Appeal

recently put it, citing Desgagnés and McKay, “Where multiple interpretations of a

⁹⁴AGBC’s submission, paragraph 20.

⁹⁵Ibid., page 807.

⁹⁶Ibid., page 812.

⁹⁷Ibid., page 810.

⁹⁸2019 SCC 58 (CanLII) [Desgagnés], at paragraph 28. These concurring reasons were on

behalf of six members of the Court.

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statute are possible, it is presumed the legislature intended the law to be read in

a manner that is consistent with its legislative authority, which is to say, in a

manner that is consistent with its constitutional authority.”⁹⁹

[66] The Supreme Court of Canada has for years underscored that the proper

approach to statutory interpretation involves “reading the words of the statute in

their entire context, in their grammatical and ordinary sense, harmonious with the

scheme and object of the statute”.¹⁰⁰Applying this approach, I conclude the

Legislature did not intend to exclude these unincorporated associations from

PIPA’s definition of “organization”, which provides that an “unincorporated

association” is an “organization”. The plain meaning of those terms applies to

these political parties—which are, as I have found, active in the province and

collect personal information of residents—and I see no plausible reason to think

that the Legislature intended any other meaning. PIPA’s legislative purposes do

not support another interpretation.¹⁰¹Nor does the language of the rest of the

statute. I arrive at the same conclusion respecting section 3(1) of PIPA, which

provides that, “[s]ubject to this section”, PIPA “applies to every organization”.

[67] I also do not accept that the fact an unincorporated association is

constituted for, and active in, federal elections and related activities requires one

to read down the definition of “organization”. In my view, interpreting the term

“organization” to apply to these unincorporated associations is consistent with the

Legislature’s legislative authority and its intention in enacting PIPA. Of course, as

the AGBC’s submission on this issue suggests, it remains to be seen whether

PIPA is constitutionally applicable to these organizations.

The NDP’s argument that it is subject to PIPEDA, not PIPA

[68] The next issue is whether the NDP is right to say that PIPEDA applies to

it, and to its electoral district associations, such that they are “exempt from the

application of PIPA under section 3(2)(c)” of PIPA.¹⁰²The NDP submits that

section 3(2)(c) of PIPA excludes federal political parties from PIPA’s scope

because PIPEDA applies to federal political parties.¹⁰³It also says that PIPA

relies on PIPEDA’s provisions “to exclude organizations under federal

jurisdiction”—i.e., “federal works, undertakings or businesses”—from PIPA’s

application, and federal political parties are “federal works, undertakings or

businesses”.¹⁰⁴

⁹⁹Brown Bros. Motor Lease Canada Ltd. v. Workers’ Compensation Appeal Tribunal, 2022 BCCA

20 (CanLII).

¹⁰⁰For a recent affirmation of this principle, see R. v. Khill, 2021 SCC 37, paragraph 77.

¹⁰¹The legislative objectives of PIPA are outlined below. I have considered them in addressing

this interpretive issue.

¹⁰²NDP's initial submission, paragraph 5.

¹⁰³Ibid., paragraph 43.

¹⁰⁴Ibid., paragraph 44.

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[69] The NDP begins with the proposition that “the objectives and the context

of other relevant legislation must be considered” in interpreting PIPA, adding that

“legislation cannot be interpreted to override other legitimate legislative

objectives or the context to which one seeks to apply it.”¹⁰⁵As I understand it, the

NDP is suggesting that the CEA and the other federal statutes it cites are

relevant to PIPA’s interpretation, i.e., that the “objectives and the context” of

those federal laws must be considered in the interpretive exercise.

[70] The NDP appeals to what it says were “extensive amendments” to the

CEA in 2018, through the Elections Modernization Act,¹⁰⁶which it says are

“relevant to the issues at hand.”¹⁰⁷It also refers to provisions of the

Telecommunications Act¹⁰⁸and what is commonly known as Canada’s Anti-

Spam Legislation,¹⁰⁹laws that, respectively, regulate telephone and electronic

communications with individuals. The NDP argues that this federal legislative

framework reflects “Canada’s balanced approach” to addressing individuals’

privacy in relation to the activities of federal political parties, and that PIPA runs

afoul of this approach.¹¹⁰

[71] As noted earlier, section 3(1) provides that PIPA “applies to every

organization”, but it does so in relation to types of personal information or

respecting an organization’s personal information practices. Section 3(2)

excludes certain types of collection, use or disclosure of personal information and

specified types of personal information from PIPA’s application.¹¹¹An example of

the latter is section 3(2)(e), which excludes from PIPA’s application “personal

information in…a court document” or “a document of a judge of the Court of

Appeal, Supreme Court or Provincial Court, or a document relating to support

services provided to a judge of those courts”. An example of the first type of

exclusion is section 3(2)(b), which provides that PIPA does not apply to “the

collection, use or disclosure of personal information, if the collection, use or

¹⁰⁵NDP's initial submission, paragraph 10, citing College of Physicians and Surgeons of British

Columbia v. British Columbia (Information and Privacy Commissioner), 2019 BCSC 354.

¹⁰⁶SC 2018, c 31.

¹⁰⁷Ibid., paragraph 11.

¹⁰⁸SC 1993, c 38.

¹⁰⁹An Act to promote the efficiency and adaptability of the Canadian economy by regulating

certain activities that discourage reliance on electronic means of carrying out commercial

activities, and to amend the Canadian Radio-television and Telecommunications Commission

Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and

the Telecommunications Act, SC 2010, c 23.

¹¹⁰NDP's initial submission, paragraph 28. PIPA came into force in 2004, long before enactment

of the 2018 CEA amendments, as well as the Telecommunications Act and Canada’s Anti-Spam

Legislation provisions, that the NDP says are relevant in discerning the legislative intention

underlying section 3(2)(c). I do not accept that these more recent federal laws have any

relevance to interpretation of what the Legislature intended when it enacted PIPA.

¹¹¹For example, section 3(2)(d) provides that PIPA does not apply to “personal information” to

which the Freedom of Information and Protection of Privacy Act applies to it. Another example is

section 3(2)(e), which excludes personal information in court documents or judicial administration

records.

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disclosure is for journalistic, artistic or literary purposes and for no other

purpose”. None of the section 3(2) exclusions, which deal with certain types of

information or information practices, excludes types of organizations per se.

[72] Consistent with this, section 3(2)(c), cited by the NDP, focuses on the

collection, use or disclosure of personal information to which PIPEDA applies. It

says that PIPA “does not apply to…the collection, use or disclosure of personal

information, if the federal Act [PIPEDA] applies to the collection, use or

disclosure”. The NDP relies on this to argue that, because it is a “federal work,

undertaking or business outside the exclusive legislative authority of the

legislatures of the provinces” as defined in section 2(1) of PIPEDA, PIPA does

not apply to it.

[73] It argues that the business of federal political parties and their electoral

district associations is clearly within Parliament’s legislative authority, “and

outside the exclusive legislative authority” of the provinces.¹¹²The Governor in

Council has, using its authority under PIPEDA, exempted organizations in British

Columbia from PIPEDA’s application to them, but expressly did not exclude

federal works, undertakings or businesses from PIPEDA’s application in British

Columbia.¹¹³Therefore, the NDP says, PIPEDA “applies to federal political

parties” as they are federal works, undertakings or businesses. In turn, section

3(2)(c) ousts PIPA’s application to the NDP.¹¹⁴As the NDP puts it, “Parliament

and the Governor in Council clearly did not intend to subject organizations under

federal jurisdiction to BC’s PIPA”.¹¹⁵It adds this:

It is true that section 4(1) of PIPEDA targets personal information that

organizations collect, use, or disclose in the course of commercial

activities. However, the effect of this section is not to remove a political

party from the application of PIPEDA. Rather, Parliament has made a

legislative decision to not subject non-commercial activities to Part 1 of

PIPEDA. The fact that non-commercial activities of political parties might

not be regulated by Part 1 at this time does not erase the fact that

Parliament clearly intended for FWUBs, such as political parties, to be

subject to PIPEDA.

[74] The NDP’s argument is not persuasive. It requires one to accept that

PIPEDA applies to federal works, undertakings or businesses full stop,

¹¹²Ibid., paragraph 33.

¹¹³Section 26(2)(b) of PIPEDA provides that the Governor in Council may, by order, “if satisfied

that legislation of a province that is substantially similar to this Part applies to an organization, a

class of organizations, an activity or a class of activities, exempt the organization, activity or class

from the application of this Part in respect of the collection, use or disclosure of personal

information that occurs within that province”. As the NDP notes, the so-called exclusion order for

British Columbia provides that the exemption from PIPEDA’s application in British Columbia does

not extend to a federal work, undertaking or business.

¹¹⁴Ibid., paragraphs 34-40.

¹¹⁵Ibid., paragraph 36.

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regardless of whether they collect, use or disclose personal information in the

course of a commercial activity or in relation to employment of individuals.

[75] As the NDP puts it above, the effect of PIPEDA’s section 4(1) allegedly “is

not to remove a political party from the application of PIPEDA.” The NDP points

to no provisions in PIPEDA that expressly subject federal works, undertakings or

businesses to PIPEDA full stop, regardless of whether they collect personal

information in the course of a commercial activity. Sections 4(1)(b) and 7.3 of

PIPEDA contain rules about an organization’s collection, use or disclosure of

what could conveniently be called employment-related information where that is

done in connection with the operation of a federal work, undertaking or business.

Apart from PIPEDA’s definition of “federal work, undertaking or business” these

two provisions contain the only mentions of that term in the statute. Nowhere

does PIPEDA say that it applies to federal works, undertakings or businesses in

the manner the NDP suggests.¹¹⁶

[76] Rather, PIPEDA’s stated purpose is to establish “rules to govern the

collection, use and disclosure of personal information in a manner that

recognizes the right of privacy of individuals with respect to their personal

information and the need of organizations to collect, use or disclose personal

information for purposes that a reasonable person would consider appropriate in

the circumstances.”¹¹⁷Like PIPA, PIPEDA is about personal information

practices and the suggestion that it applies to the NDP as an “organization” that

is also a “federal work, undertaking or business”, but does not apply to its

personal information practices, flies in the case of the purpose and text of

PIPEDA.¹¹⁸

[77] Even if the NDP’s argument on this point were correct, I would in the

alternative find that Parliament’s authority to legislate in respect of elections to

¹¹⁶In its reply, the NDP cites a 2021 decision of the Privacy Commissioner of Canada, entitled

“Letter regarding complaint against federal political parties”, March 25, 2021 (a copy forms Exhibit

“1” to the complainant affidavit). The NDP suggests, at paragraph 13 of its submission, that this

“solidifies” its argument “that Parliament clearly intended” that a federal work, undertaking or

business” be regulated under PIPEDA. That may be true as regards such an entity’s collection,

use and disclosure of personal information in the course of a commercial activity, but the decision

does not support the NDP’s argument here.

¹¹⁷PIPEDA, section 3.

¹¹⁸Commissioner McEvoy dealt with this question in Courtenay-Alberni. The respondent

constituency association argued that PIPEDA applied to it because it is an “organization” as

defined in that statute, such that, by virtue of section 3(2)(c), PIPA did not apply to it. Regarding

section 4(1), he concluded, at paragraph 26, that the “opening language of s. 4(1) does not mean

that PIPEDA applies to every unincorporated association across the country simply because they

qualify as organizations within the meaning of PIPEDA’s definition of that term.” He also noted, at

paragraph 27, that section 3(2)(c) of PIPA focuses on activity—the collection, use and disclosure

of personal information by an organization—and section 4(1) of PIPEDA similarly “targets

circumstances in which PIPEDA applies to a particular collection, use or disclosure of personal

information, not whether an entity falls within PIPEDA’s definition of ‘organization’”.

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the House of Commons does not mean that a federal political party is on that

basis a “federal work, undertaking or business” as defined in PIPEDA.

[78] PIPEDA defines the term “federal work, undertaking or business” as

meaning “any work, undertaking or business that is within the legislative authority

of Parliament” and goes on to state that this includes familiar things, such as “a

railway, canal, telegraph or other work or undertaking that connects a province

with another province”, a “line of ships that connects a province with another

province, or that extends beyond the limits of a province", “aerodromes, aircraft

or a line of air transportation”, “radio broadcasting”, and “banks”.

[79] The NDP’s argument fastens on section 2(1)(i), which includes as a

“federal work, undertaking or business” any “federal work, undertaking or

business outside the exclusive legislative authority of the legislatures of the

provinces”. This requires one to accept that a federal political party is a “work”,

an “undertaking” or a “business” within PIPEDA’s meaning. It also requires one to

accept that a federal political party is not “within the exclusive legislative

authority” of a provincial legislature. The NDP cites no authority to support its

interpretation of this definition of “federal work, undertaking or business”.

[80] An unincorporated association that is a federal political party is an

“organization” but is not a “work”, an “undertaking” or a “business” within the

meaning of PIPEDA. I am therefore not persuaded by the NDP’s argument that it

is such a creature, the result being that section 3(2)(c) of PIPA excludes federal

political parties from PIPA’s scope.

[81] Moreover, the definition on which the NDP relies also requires that such

an entity be within “the legislative authority of Parliament” and “outside the

exclusive legislative authority of the legislatures of the provinces”. The reference

to “exclusive” authority reflects the language of the Constitution Act, 1867, whose

text uses that term in relation to both federal and provincial heads of authority.¹¹⁹

The PIPEDA definition, to the extent it requires exclusivity of provincial legislative

authority, failing which any “work”, “undertaking” or “business” would be a

“federal work, undertaking or business”, does not sit easily with constitutional

jurisprudence as it has developed since PIPEDA’s enactment in 2000.

[82] At all events, I am not persuaded that this aspect of the definition makes

the NDP or any other federal political party a federal work, undertaking or

business for present purposes.

¹¹⁹As seen later, PIPA is a valid exercise of the Legislature’s authority, under section 92(13), to

legislate in respect of property and civil rights in the province. The opening words of section 92

provide that, “[i]n each Province the Legislature may exclusively make Laws in relation to Matters

coming within the Classes of Subjects next herein-after enumerated”, which includes “Property

and Civil Rights in the Province” (emphasis added).

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[83] The NDP also cites British Columbia (Constituency Office of a Federal

Member of Parliament) (Re)¹²⁰in support of its contention that Parliament

intended federal works, undertakings or businesses “such as political parties” to

be subject to PIPEDA. Constituency Office, which is also discussed later, does

not advance that claim.¹²¹

[84] A decision of the OIPC, Constituency Office dealt with the question of

whether PIPA applies to the constituency office of a Member of Parliament. It did

not deal with federal political parties. The adjudicator did say that “the privacy

obligations of federal works, undertakings and businesses are regulated by

federal legislation” but that was a passing comment and not part of her finding

that the offices of Members of Parliament “are subject to federal jurisdiction in

this area”.¹²²

[85] As I see it, at its heart the adjudicator’s decision turned on section 18 of

the Constitution Act, 1867, which gives Parliament exclusive authority over the

“privileges, immunities and powers to be held, enjoyed and exercised” by

members of the House of Commons”. On that basis, she concluded that

“jurisdiction to legislate to affect the manner in which an MP’s office operates in

its assistance of constituents lies with the federal government”, and that “federal

legislators are not subject to provincial jurisdiction in that regard.”¹²³The

adjudicator did go on to discuss paramountcy and interjurisdictional immunity—

this part of the decision is discussed below—but Constituency Office does not

stand for the proposition that a federal political party is a “federal work,

undertaking or business” under PIPEDA and is thus not subject to PIPA.

The adjudicator’s passing comment about regulation of the privacy practices of

federal works, undertakings or businesses does not assist the NDP’s argument.

[86] For the above reasons, I conclude that a federal political party such as the

NDP is an “organization” within the meaning of PIPA, it is not a federal work,

undertaking or business as defined in PIPEDA, and it is not excluded from

PIPA’s application by section 3(2)(c) of PIPA. Even if a federal political party

were a “federal work, undertaking or business” as defined in PIPEDA, PIPEDA

would not apply on that basis alone.

Overview of federal legislation in issue

[87] Because the participants’ constitutional arguments refer to provisions of

the CEA and other federal laws it is useful to offer a brief overview of them here.

¹²⁰2007 CanLII 52750 [Constituency Office].

¹²¹NDP's initial submission, paragraph 40.

¹²²Ibid., paragraph 18.

¹²³Ibid., paragraph 17.

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[88] Section 45(1) of the CEA provides for disclosure to federal political parties

and Members of Parliament of an electronic copy of the list of electors, which

contains “each elector’s surname, given names, civic address and mailing

address, and the identifier that is assigned to the elector”.¹²⁴

[89] Section 110 authorizes federal political parties, Members of Parliament

and election candidates to use the lists “for communicating with electors”,

including “for soliciting contributions and recruiting party members.” As the NDP

notes, the CEA allows people to ask not to be included in the list of electors but,

failing that, a voter’s consent is not relevant—a party may contact a voter without

consent.¹²⁵

[90] Section 385(1) of the CEA requires a political party that applies for

registration under the CEA to include in its application, as section 385(2)(k)

stipulates, “the party’s policy for the protection of personal information”. That

section prescribes the elements that must be included in a privacy policy: a

statement describing the types of personal information a party collects; a

statement indicating how it uses personal information and may sell it; a statement

indicating how it protects personal information; a statement about employee

training; and a statement about its practices relating to collection and use of

personal information created from online activity and its use of cookies. A policy

also must include contact information of someone to whom concerns can be

addressed. Section 385(4) requires a political party to publish its privacy policy

on the party’s internet site before it submits its registration application. Section

385(2)(l) requires an applicant political party to include in its application “the

address of the page — accessible to the public — on the party’s Internet site

where its policy for the protection of personal information is published” (and

section 385.1(1) extends this requirement to registered federal political parties).

[91] Section 385.1 required registered federal political parties to file their

privacy policies with the Chief Electoral Officer within three months after that

section came into force. There is a comparable requirement for applicant political

parties.

[92] If a registered federal political party has failed to comply, section 385.1(2)

provides that the Chief Electoral Officer “shall implement the procedure for non-

voluntary deregistration” set out in the CEA and provides that an applicant party

that has not complied cannot be registered.

¹²⁴These other CEA provisions also provide for lists of electors, including preliminary lists, to be

made available: sections 45, 93(1.1), 104.2, 107(4) and 109.

¹²⁵NDP's initial submission, paragraphs 20-23. It is, as the NDP also observes, an offence to

“knowingly use personal information in a list of electors for purpose other than those listed in

section 111 of the CEA.

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[93] Two other federal statutes are cited.

[94] The first is the Telecommunications Act, which enables the Canadian

Radio-television and Telecommunications Commission to make orders relating to

the national do-not-call list. Section 41.7(1)(c) exempts from any such order a

“telecommunication…made by or on behalf of a political party that is a registered

party as defined in subsection 2(1) of the Canada Elections Act or that is

registered under provincial law for the purposes of a provincial or municipal

election”.

[95] The other federal law relied on is Canada’s Anti-Spam Legislation, section

6(1) of which prohibits the sending of “commercial electronic messages” without

consent unless a consent exemption applies, including under the Electronic

Commerce Protection Regulations.¹²⁶Section 3(h) of those regulations exempts

any message “that is sent by or on behalf of a political party or organization, or a

person who is a candidate – as defined in an Act of Parliament or the legislature

of a province – for publicly elected office and the message has as its primary

purpose soliciting a contribution as defined in subsection 2(1) of the Canada

Elections Act”.

Constitutional Analysis

[96] Before dealing with the constitutional arguments, it is necessary to deal

with the complainants’ argument that there is an insufficient factual foundation on

which to assess the constitutional issues that the political parties have raised.

The complainants contend that the political parties’ submissions are “glaringly

lacking in evidence” and “do not rise above conclusory statements and

unfounded assertions.”¹²⁷They suggest that the evidentiary deficit leaves only

“the unsupported hypotheses of enthusiastic counsel,” such that the political

parties’ constitutional challenge should fail on that basis alone.¹²⁸

[97] It is true that, as Stratas J.A. has put it, “Decades of unbroken Supreme

Court case law forbids courts from getting around that evidentiary requirement

through judicial notice, assumptions or guesswork”.¹²⁹The complainants’ position

is, however, not persuasive. The available evidence offers a sufficient basis for

adjudication of the constitutional issues at hand. There is evidence that each of

the political parties involved is active in British Columbia. The evidence suggests

that their activities here include the canvassing of voters, which, the evidence

also indicates, can involve the collection of personal information. It is also clear

that the political parties have collected personal information of the complainants.

¹²⁶SOR/2013-221.

¹²⁷Complainants’ reply, paragraph 12.

¹²⁸Ibid., paragraph 15.

¹²⁹Weatherley v. Canada (Attorney General), 2021 FCA 158, at paragraph 43. Cited by the

complainants at paragraph 13 of their reply.

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There is, in other words, a sufficient factual basis for me to consider whether

PIPA is validly enacted and, if it is, whether it is nonetheless constitutionally

inapplicable to these four political parties.

[98] Turning to those central questions, it is helpful to note here what the

Supreme Court of Canada has said this about the appropriate analytical

approach:

A court must conduct the pith and substance analysis before inquiring into

the application of the doctrines of interjurisdictional immunity and federal

paramountcy, both of which are predicated on the constitutional validity of

the impugned statute or measure. If the doctrine of interjurisdictional

immunity applies, the impugned measure remains valid but has no

application with regard to the core of the power of the other level of

government that it impairs: Canada (Attorney General) v. PHS Community

Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 58. Similarly,

where the doctrine of federal paramountcy applies, the impugned provincial

measure is rendered inoperative to the extent of its incompatibility with the

federal legislation: Canadian Western Bank, at para. 69; Law Society of

British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113, at

para. 74.¹³⁰

[99] In approaching the constitutional issues, it is necessary to “take into

account the principle of co-operative federalism, which favours, where possible,

the concurrent operation of statutes enacted by governments at both levels”.¹³¹

As the British Columbia Court of Appeal has observed, although the constitution

cannot be separated from the normal constraints of interpretation, “it is trite but

true to note that Canadian constitutional law is a ‘living tree’ that reflects society

and its changing concerns over time”, and the “formerly inflexible approach to the

division of powers has given way to a ready acceptance of overlapping and often

‘mutually modifying’ jurisdictions.”¹³²

[100] It is also the case, however, that, although co-operative federalism offers

“flexibility for the interpretation and application of the constitutional doctrines

relating to the division of powers, such as federal paramountcy and

interjurisdictional immunity, it can neither override nor modify the division of

powers itself” and cannot “support a finding that an otherwise unconstitutional

law is valid.”¹³³

¹³⁰Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23 [Rogers Communications],

at paragraph 35.

¹³¹Ibid., paragraph 38.

¹³²Reference re Environmental Management Act (British Columbia), 2019 BCCA 181, at

paragraph 19. Appeal dismissed: Reference re Environmental Management Act, 2020 SCC 1.

¹³³Ibid., paragraph 39.

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Is PIPA within the legislative authority of the British Columbia Legislature?

[101] The NDP argues that PIPA is beyond the legislative authority of the

Legislature because Parliament has exclusive authority to legislate with respect

to the election of members of the House of Commons. It suggests that, because

Parliament has legislated in respect of federal elections, British Columbia cannot,

through PIPA, validly regulate “activities of federal electoral organizations that

operate in British Columbia”.¹³⁴It also argues that the “political activities” of the

NDP “are not matters of a merely local nature”, and privacy legislation that

purports to operate outside a province, or that affects matters that are not of a

“merely local or private nature” in the province, is beyond the province’s

capacity.¹³⁵

[102] The Conservative Party does not engage on the question of whether PIPA

is validly enacted under a provincial head of legislative authority. It argues,

rather, that PIPA cannot properly apply to federal political parties. Similarly, the

Liberal Party acknowledges that PIPA is “valid provincial legislation as it

regulates the collection, use and disclosure of personal information in the private

sector in British Columbia.”¹³⁶

[103] The AGBC argues that, as Commissioner McEvoy concluded in

Courtenay-Alberni, the pith and substance of PIPA is the regulation of the

collection, use and disclosure of personal information by organizations. The

AGBC contends that PIPA falls within British Columbia’s authority to legislate

under the provincial heads of legislative authority in respect of property and civil

rights and matters of a local or private nature in the Constitution Act, 1867.

[104] The complainants contend that PIPA is validly enacted. They argue that

PIPA is at its heart about regulating organizations’ collection, use and disclosure

of personal information. They say that any division of powers analysis must

recognize that some degree of interplay and overlap will exist in regulating a

matter. A federal or provincial law may incidentally affect provincial or federal

matters, but so long as the law is within the enacting jurisdiction’s authority, it is

valid.

Principles that apply in assessing a statute’s validity

[105] The first step requires a decisionmaker to identify what has traditionally

been called the “pith and substance”—or the essential, true subject—of the

statute under scrutiny. The second step requires a decisionmaker to decide if the

“pith and substance” of the law falls under a provincial or a federal head of

¹³⁴NDP's initial submission, paragraphs 51 and following.

¹³⁵Ibid., paragraph 56.

¹³⁶Liberal Party’s initial submission, paragraph 54.

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legislative competence in the Constitution Act, 1867.¹³⁷

[106] The first stage involves considering the purpose and effects of the

challenged statute to identify its true subject matter, i.e., its “main thrust, or

dominant or most important characteristic”.¹³⁸This can involve both “intrinsic

evidence, such as the legislation’s preamble or purpose clauses, and extrinsic

evidence, such as Hansard or minutes of parliamentary committees”.¹³⁹

[107] Regarding the statute’s effects, both its “legal effects, those that flow

directly from the provisions of the statute itself, and the practical effects, the ‘side’

effects that flow from the application of the statute” are considered.¹⁴⁰It is clear

that “incidental effects that are corollary or secondary to the dominant purpose of

the law will not render the law constitutionally invalid”, i.e., “[i]ncidental intrusions

into another jurisdiction’s mandate are to be expected” and the statute’s

dominant purpose remains decisive.¹⁴¹

[108] Incidental effects “may be of significant practical importance but are

collateral or secondary to the mandate of the enacting legislature”.¹⁴²As the

Supreme Court of Canada recently said, a “law’s legal effects are discerned from

its provisions by asking ‘how the legislation as a whole affects the rights and

liabilities of those subject to its terms’”.¹⁴³In turn, the law’s practical effects—the

side effects flowing from its application—must be assessed on the available

evidence.¹⁴⁴

[109] The Supreme Court has underscored this many times. In Canadian

Western Bank v. Alberta, for example, it concluded that Alberta’s Insurance Act is

“about the regulation of the insurance industry within the province”.¹⁴⁵Although

that Act applied “to all persons providing or promoting insurance services,

including banks”, it was a valid exercise of provincial authority over property and

civil rights.¹⁴⁶The fact that it could have “incidental effects on banks and, by

implication, on the federal banking power”, did not mean it was unconstitutional,

as “such overlap is generally permissible and should not disturb the

constitutionality of an otherwise intra vires statute”.¹⁴⁷

¹³⁷References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 [Greenhouse Gas

Reference], paragraph 51.

¹³⁸Ibid.

¹³⁹Ibid.

¹⁴⁰Ibid.

¹⁴¹Jim Pattison Enterprises Ltd. v. British Columbia (Workers’ Compensation Board), 2011 BCCA

35 [Jim Pattison Enterprises], at paragraph 77.

¹⁴²Canadian Western Bank, paragraph 28.

¹⁴³Greenhouse Gas Reference, paragraph 70 (citation omitted).

¹⁴⁴Ibid., paragraph 77.

¹⁴⁵[2007] 2 SCR 3, 2007 SCC 22 [Canadian Western Bank], paragraph 116.

¹⁴⁶Ibid.

¹⁴⁷Ibid., citing Kitkatla Band, at paragraph 54.

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[110] It is important to keep assessment of the statute’s true subject, of its pith

and substance, separate from the second step, i.e., the division of powers

analysis. As the Supreme Court recently reminded us, failure to keep the two

stages separate risks blurring the exercise and tilting it towards results.¹⁴⁸

What is PIPA’s true nature, or essence?

[111] What does the intrinsic and extrinsic evidence reveal about PIPA’s true

subject matter?

[112] As a general observation, the Supreme Court of Canada has

acknowledged that Alberta’s Personal Information Protection Act—which is

closely aligned with PIPA in substance—aims to give individuals some measure

of control over their personal information. This control over one’s personal

information is “intimately connected to their individual autonomy, dignity and

privacy”, which “are fundamental values that lie at the heart of a democracy.”¹⁴⁹

For this reason, “legislation which aims to protect control over personal

information should be characterized as ‘quasi-constitutional’ because of the

fundamental role privacy plays in the preservation of a free and democratic

society”.¹⁵⁰

[113] Like Alberta’s statute, PIPA’s title suggests that it is concerned with

personal information protection.¹⁵¹This is echoed by the statement of legislative

purpose in section 2:

The purpose of this Act is to govern the collection, use and disclosure of

personal information by organizations in a manner that recognizes both the

right of individuals to protect their personal information and the need of

organizations to collect, use or disclose personal information for purposes

that a reasonable person would consider appropriate in the

circumstances.¹⁵²

[114] Supplementing this intrinsic evidence, during the legislative debate leading

to PIPA’s enactment, the minister responsible had this to say:

This bill accomplishes the key objectives of giving British Columbians

protection for their personal information held by the private sector and

allowing businesses and non-profit organizations to collect, use or disclose

¹⁴⁸Ibid., paragraph 56.

¹⁴⁹Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers,

Local 401, [2013] 3 SCR 733, 2013 SCC 62, at paragraph 19.

¹⁵⁰Ibid.

¹⁵¹A statute’s title is intrinsic evidence of its nature and purpose: Greenhouse Gas Reference,

paragraphs 58-61.

¹⁵²Statutory preambles and statements of legislative purpose are valid forms of intrinsic

evidence: Greenhouse Gas Reference, at paragraphs 58-61, and Jim Pattison Enterprises, at

paragraph 63.

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personal information for reasonable purposes. By striking this balance, this

bill enhances B.C.’s competitive position while safeguarding British

Columbians’ personal information.

…

It strikes the appropriate balance between the strong desire of British

Columbians to protect their personal information held by the private sector

and ensures that B.C. for-profit and non-profit organizations are able to use

the information they need for legitimate business activities. Under this bill,

British Columbians can feel confident that their personal information is safe,

even when using the Internet, and businesses can operate under a

reasonable and understandable set of privacy rules that they helped

create.¹⁵³

[115] The minister added these observations:

The provisions of this bill are intended to enhance the protection of

personal information and at the same time provide a framework and

structure that will allow organizations to take advantage of e-commerce and

international trade opportunities. The provisions are designed to apply to

all sizes of business and, for those organizations that already abide by the

ethical information practices, to be implemented with as little disruption as

possible. Those consulted have described this bill's provisions as a

backstop for good business practices.¹⁵⁴

[116] PIPA’s provisions also offer substantive evidence about its true purpose

and character.

[117] The default approach under PIPA is to require organizations seeking to

collect, use and disclose personal information to obtain the knowledgeable

consent of individuals (section 6(1)). This is not a universal rule under PIPA,

however, since there are several exceptions to consent. These exceptions create

guardrails within which organizations may collect, use and disclose personal

information without consent.¹⁵⁵One example is the authority for organizations to

collect, use or disclose personal information without consent where “required or

authorized by law”.¹⁵⁶As discussed later, this consent exception would authorize

federal political parties to collect, use and disclose personal information in the list

of electors as permitted under the CEA.

¹⁵³British Columbia, Official Report of Debates of the Legislative Assembly (Hansard), 37^thParl.,

4^thSess. Vol. 14, No. 13 (May 1, 2003), page 6415.

¹⁵⁴Ibid., page 6416.

¹⁵⁵The consent exceptions, of which there are over a dozen, are found in sections 6(2) 15, 18

and 20-22.

¹⁵⁶Sections 12(1)(h) (collection), 15(1)h) (use) and 18(1)(o) (disclosure).

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[118] PIPA also imposes a degree of transparency and accountability for

organizations’ personal information practices. It requires organizations to give

individuals access to their own personal information (there are exceptions to

this), to tell people what they have used their information for, and to whom they

have disclosed it (section 23). It imposes a duty for organizations to take

reasonable steps to ensure they have complete, and accurate, information about

people and to at least entertain individuals’ requests for correction of their

personal information (sections 33 and 24). This helps ensure that organizations

use accurate and up-to-date information when they make decisions that affect

people. Organizations are also required to implement reasonable security

arrangements to protect personal information from what are commonly called

privacy breaches (section 34).

[119] The approach to oversight under PIPA is what might conveniently be

labelled remedial in nature.¹⁵⁷The Commissioner is empowered to oversee

compliance through investigation of complaints, own-motion investigations, and

adjudicative processes. The Commissioner may, for example, order compliance

by an organization, confirm or vary an organization’s decision, or order

destruction of improperly collected personal information. PIPA does create some

offences, such as using deception or coercion to collect personal information and

obstructing the Commissioner.¹⁵⁸

[120] As this overview suggests, the true purpose, and the substance, of PIPA’s

provisions accords with the stated legislative purpose and with the minister’s

remarks about legislative intention. That is, PIPA’s true concern and subject is,

as a law of general application, the regulation of organizations’ personal

information practices.

PIPA’s legal and practical effects

[121] This remains the case even accepting that PIPA may incidentally affect

other areas of activity, either legally or practically. As noted earlier, the courts

have made it very clear that the fact that a law of general application may

incidentally affect matters, or activities, in other jurisdictional spheres does not

mean the statute is beyond the enacting jurisdiction’s constitutional authority.

[122] In terms of legal effects, PIPA affects the legal rights of organizations

respecting their collection, use or disclosure of personal information.¹⁵⁹It is

equally plain that its intended and actual legal effect is not to regulate elections,

whether at the federal, provincial or local levels. It does not mention elections

¹⁵⁷This summary is of selected key oversight provisions in Part 11 of PIPA.

¹⁵⁸Section 56. These would, obviously, have to be investigated and then prosecuted in the

courts, through the usual prosecutorial channels.

¹⁵⁹Commissioner McEvoy also concluded, at paragraph 42 of Courtenay-Alberni, that the

substance of PIPA’s legal effects is “to regulate the collection, use and disclosure of personal

information by organizations.”

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and is devoid of any provisions that could reasonably be expected to be found in

an election law such as the CEA (or, as another example, British Columbia’s

Election Act).¹⁶⁰There are no provisions dealing with things like the qualification

of voters, qualification or nomination of election candidates, registration of

political parties, or the regulation of contributions to political parties, campaign

financing, election advertising or sponsorship.¹⁶¹The fact that PIPA regulates

personal information practices does not mean that PIPA’s legal effect is to

regulate elections or election matters, federal or otherwise.

[123] Nor does the evidence at hand support the contention that PIPA has

impermissible practical effects. I have considered the political parties’ evidence

and submissions about PIPA’s alleged impact on federal elections and their

activities, e.g., their contention that PIPA’s application risks skewing election

outcomes, creating unfairness in elections, leading to inconsistency of rules, and

more. As discussed below, they have failed to establish how these harms would

arise if PIPA were to apply to them.

[124] Moreover, PIPA permits organizations to collect, use or disclose personal

information without consent where another law permits it. The CEA does so in

relation to voter information disclosed under the CEA and federal political parties

can otherwise collect more personal information with voters’ consent, or under

other PIPA consent exceptions, without falling afoul of PIPA. PIPA does not,

either legally or practically, prevent this from happening.

[125] I conclude that PIPA’s purpose, its pith and substance, is regulation of the

collection, use and disclosure of personal information and that any practical or

legal effects are incidental, or secondary, to this.

Does PIPA fall under provincial or federal legislative authority?

[126] After identifying the pith and substance of a statute, the next step in

assessing constitutional validity is to decide how to classify it under the heads of

legislative authority in the Constitution Act, 1867. Here, the question is whether

PIPA’s core, or essence—the regulation of organizations’ collection, use and

disclosure of personal information—falls under a provincial or federal head of

authority.

[127] As the above summary indicates, PIPA regulates the conduct of private

relations, i.e., it regulates dealings between individuals and organizations as they

relate to individuals’ personal information. In its application to transactions

between businesses and individuals it could be seen as a kind of consumer

¹⁶⁰RSBC 1996, c 106.

¹⁶¹It hardly needs saying, but the fact that the CEA has since 2018 included requirements for

political party privacy policies of course does not mean that PIPA is somehow concerned with

elections.

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protection law, as Commissioner McEvoy noted in Courtenay-Alberni.¹⁶²In that

context, certainly, PIPA bears some similarity to the advertising rules at issue in

Irwin Toy Ltd. v. Quebec (Attorney General).¹⁶³Whether an organization is for-

profit or not-for-profit, I conclude that its regulation of organizations’ personal

information practices is concerned with property and civil rights under section

92(13). I conclude that PIPA is a law respecting property and civil rights and thus

falls under the provincial legislative authority conferred by section 92(13) of the

Constitution Act, 1867.

[128] I further conclude that PIPA is within provincial authority over matters of a

local or private nature, under section 92(16) of the Constitution Act, 1867. The

NDP accepts that provinces have the authority, under section 92(16), to enact

privacy legislation within the province.¹⁶⁴It says, however, that its activities “are

not matters of a merely local nature”, and Parliament governs the whole country,

not only the territory within a province”, with federal elections affecting “national

and international politics and interests.”¹⁶⁵It adds that privacy legislation “that

purports to operate outside of the Province or affect matters that are not of a

‘merely local or private nature’ in the province are [sic] ultra vires the

Province.”¹⁶⁶

[129] The fact that an organization is active outside British Columbia, such that

its activities are not “of a merely local nature”, is by no means determinative on

this point. The idiosyncrasies of a given organization’s operations, whether they

happen to be local, national, or international, do not drive the constitutional

analysis. The focus must be on the legislation itself, i.e., on what the statute is

about in terms of the heads of legislative authority.

[130] Moreover, I see no evidence that PIPA purports to operate outside British

Columbia, and there is no basis in its provisions for such a conclusion.

As already noted, the fact that PIPA may, through its application to an

organization’s activities in British Columbia, have an incidental effect on that

organization in another sphere is not sufficient to render the law invalid.¹⁶⁷

[131] As noted earlier, the Liberal Party cites McKay for the proposition that,

where a law under review “is capable of receiving a meaning according to which

its operation is restricted to matters within the power of the enacting body it shall

¹⁶²Paragraph 50. I adopt Commissioner McEvoy’s comments in that paragraph.

¹⁶³[1989] 1 SCR 927, 1998 CanLII 829. It is worth noting here that, while the provincial law

affected federal broadcast undertakings, it was within the province’s authority under sections

92(1) and 92(16).

¹⁶⁴NDP's initial submission, paragraphs 53 and 54.

¹⁶⁵Ibid., paragraph 55.

¹⁶⁶Ibid., paragraph 56.

¹⁶⁷The riding association involved in Courtenay-Alberni appears to have made essentially the

same argument and I find Commissioner McEvoy’s analysis of the issue of assistance here.

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be interpreted accordingly.”¹⁶⁸According to the Liberal Party, this means that,

where federal election law permits them to contact electors, that is a federal right

about which only Parliament can legislate, so PIPA should be interpreted as not

extending to federal matters.¹⁶⁹

[132] The AGBC responds that, while McKay continues to be sound authority for

the principle that an interpretation of a statute that makes it constitutional is

preferable to an interpretation that renders it unconstitutional, it has, at least

since Ontario (Attorney General) v. OPSEU,¹⁷⁰been superseded in other

respects. In Canadian Western Bank, for example, the Supreme Court of Canada

appears to have viewed McKay as a case about interjurisdictional immunity.¹⁷¹

[133] I agree and do not accept that McKay is good authority for the proposition

that a law is constitutionally invalid solely because of its incidental effects.¹⁷²

Incidental effects come into play, rather, when considering the interjurisdictional

immunity or paramountcy doctrines.

[134] To sum up, PIPA is, for the reasons given above, validly enacted

legislation, falling under the provincial heads of authority in section 92(13) and

also section 92(16) of the Constitution Act, 1867.¹⁷³

[135] I will now consider the political parties’ contention that PIPA is

constitutionally inapplicable to their collection, use and disclosure of personal

information by operation of the interjurisdictional immunity and paramountcy

doctrines.

Does paramountcy oust PIPA’s application?

[136] The paramountcy doctrine has two branches. The first holds that, where a

valid provincial statute creates an operational conflict with a federal statute, the

provincial law is inoperative to the extent of the conflict. An operational conflict

arises only where “one enactment says ‘yes’ and the other says ‘no’, such that

¹⁶⁸McKay, at pages 803-804.

¹⁶⁹Liberal Party’s initial submission, paragraph 61.

¹⁷⁰[1987] 2 SCR 2, 1987 CanLII 71 (SCC).

¹⁷¹Canadian Western Bank, paragraph 41. In its reply, the Liberal Party says it does not argue

that PIPA “is entirely invalid in pith and substance”, making the AGBC’s view of McKay beside the

point. To my mind, McKay should be seen as a case about interjurisdictional immunity.

¹⁷²As noted earlier, Taschereau C.J.C. made it clear that the constitutional validity of the bylaw

had not been challenged.

¹⁷³It follows that I reject the argument that PIPA is ultra vires the British Columbia Legislature

because it is legislation in respect of federal elections, a head of authority the NDP argues, at

paragraphs 46-51 of its initial submission, is reserved to Parliament under section 41 of the

Constitution Act, 1867. In neither substance nor in its effects is PIPA legislation in respect of

elections, federal or otherwise.

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‘compliance with one is defiance of the other’”.¹⁷⁴The second branch renders a

provincial law inoperative to the extent that it frustrates the purpose of a federal

statute.¹⁷⁵

[137] In paramountcy cases, the Supreme Court of Canada has cautioned,

“[t]he fact that Parliament has legislated in respect of a matter does not lead to

the presumption that in so doing it intended to rule out any possible provincial

action in respect of that subject”.¹⁷⁶The “fundamental rule of constitutional

interpretation”, therefore, is that “[w]hen a federal statute can be properly

interpreted so as not to interfere with a provincial statute, such an interpretation

is to be applied in preference to another applicable construction which would

bring about a conflict between the two statutes.”¹⁷⁷Bearing in mind the principle

of cooperative federalism, “paramountcy must be narrowly construed”, and courts

must take a “restrained approach”, one favouring “harmonious interpretations of

federal and provincial legislation…over interpretations that result in

incompatibility”.¹⁷⁸

[138] As regards the first branch of paramountcy, cooperative federalism “allows

for some interplay, and indeed overlap, between both federal and provincial

legislation”,¹⁷⁹and thus “normally favours—except where there is an actual

conflict—the application of valid rules adopted by governments at both levels as

opposed to favouring a principle of relative inapplicability designed to protect

powers assigned exclusively to the federal government or to the provinces”.¹⁸⁰

[139] Respecting the second branch of the doctrine, “absent clear evidence that

Parliament intended a broader statutory purpose, courts should avoid an

expansive interpretation of the purpose of federal legislation which will bring it

into conflict with provincial legislation”. That is, “care must be taken not to give

too broad a scope to paramountcy on the basis of frustration of federal purpose”,

meaning “that the purpose of federal legislation should not be artificially

broadened beyond its intended scope”:

… To improperly broaden the intended purpose of a federal enactment is

inconsistent with the principle of cooperative federalism. At some point in

the future, it may be argued that the two branches of the paramountcy test

¹⁷⁴Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., [2015] 3 SCR 419, 2015 SCC

53 [Lemare Lake], at paragraph 18, quoting from Multiple Access Ltd. v. McCutcheon, [1982] 2

SCR 161, 1982 CanLII 55 (SCC), at page 191.

¹⁷⁵Lemare Lake, at paragraph 19, and Canadian Western Bank, at paragraph 73.

¹⁷⁶Canadian Western Bank, at paragraph 74.

¹⁷⁷Ibid., paragraph 75.

¹⁷⁸Lemare Lake, paragraph 21.

¹⁷⁹Ibid., paragraph 22.

¹⁸⁰Quebec (Attorney General) v. Lacombe, [2010] 2 SCR 453, 2010 SCC 38, at paragraph 118,

per Deschamps J. (dissenting), quoted with approval in Lemare Lake, paragraph 22.

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are no longer analytically necessary or useful, but that is a question for

another day.”¹⁸¹

[140] Regarding this version of paramountcy, a party alleging that provincial

legislation frustrates the purpose of a federal enactment “must first establish the

purpose of the relevant federal statute, and then prove that the provincial

legislation is incompatible with this purpose”; the burden “a party faces in

successfully invoking paramountcy is accordingly a high one”.¹⁸²

Has the “operational conflict” branch of paramountcy been shown to

apply?

[141] Turning to the participants’ arguments on the first branch of

paramountcy—i.e., whether there is an operational conflict between PIPA and

the CEA—the AGBC says the political parties “have not given even a single

example of a situation in which it would be impossible to comply with both

simultaneously.”¹⁸³The complainants say there is no operational conflict, and

note that no operational conflict arises where a provincial law is more restrictive

than a permissive federal law.¹⁸⁴The Conservative Party concedes that there is

no operational conflict between PIPA and federal law,¹⁸⁵while the Liberal Party

and the NDP argue there is.

[142] The Liberal Party argues that federal political parties “must follow the rules

set out for them by Parliament, and Parliament has given the Chief Electoral

Officer final say on all matters related to federal elections, including privacy”,

adding that the “B.C. OIPC cannot deprive the Chief Electoral Officer of that final

decisional authority.”¹⁸⁶

[143] The Liberal Party also says that PIPA imposes “different requirements” for

the collection, use and disclosure of personal information than the CEA does.¹⁸⁷

It alludes to the CEA’s restrictions on use of personal information obtained from

the list of electors and says, without elaborating, that a court would reach a

¹⁸¹Lemare Lake, paragraph 23 (citations omitted).

¹⁸²Ibid., paragraph 26 (citations omitted).

¹⁸³AGBC submission, paragraph 64.

¹⁸⁴Complainants’ initial submission, paragraph 80.

¹⁸⁵Conservative Party’s initial submission, paragraph 55.

¹⁸⁶Liberal Party’s initial submission, paragraph 82, Liberal Party reply, paragraph 31. The Liberal

Party does not elaborate on its reference to the Chief Electoral Officer having “final say” or “final

decisional authority” in relation to privacy. Under the CEA, the Chief Electoral Officer’s “final say”

or “final decisional authority” could relate to compliance with section 110, i.e., at least in terms of

investigations, though not prosecutions. Where a registered party fails to file a privacy policy, the

CEA does not give the Chief Electoral Officer any real “say” or “decisional authority”, since

section 385.1(2)(c) provides that the Chief Electoral Officer in such a case “shall implement the

procedure for non-voluntary deregistration set out in sections 415, 416 and 418” (added

emphasis).

¹⁸⁷Liberal Party’s initial submission, paragraph 82.

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different answer about application of a “specific privacy principle” depending on

whether the CEA or PIPA were to apply.¹⁸⁸Application of the “general PIPA

obligations”, it adds, would hinder the Liberal Party’s collection and use of

personal information of British Columbia voters, “to the detriment of the rights of

Canadian voters to participate in democracy.¹⁸⁹

[144] The Liberal Party says that, because the federal government has not

subjected federal political parties to federal privacy laws, it is not open to British

Columbia to subject them to privacy legislation.¹⁹⁰Extending PIPA to federal

political parties would, it argues, “create an operational conflict” because federal

political parties “would be told to do inconsistent things.”¹⁹¹The Liberal Party

refers to the CEA’s personal information provisions as “specifically tailored to the

unique role of federal political parties” and says that, apart from those provisions,

“other personal information can be collected, used and disclosed without the

same restrictions”.¹⁹²

[145] As noted earlier, the CEA gives parties access to personal information that

enables them to communicate with voters, authorizes them to use that

information to communicate with voters, and prohibits other uses of information in

the list of electors. PIPA explicitly permits collection, use and disclosure of

personal information, without consent, where authorized by law, and the CEA is

such a law. Far from creating an operational conflict with the CEA, PIPA

dovetails with it on this point.

[146] Nor is the CEA’s requirement that federal political parties must adopt, file

and publish privacy policies problematic in terms of political party’s ability to

comply with PIPA’s provisions. Section 385(2) of the CEA stipulates what

elements a privacy policy must contain but is silent about the merits, or

substance, of such a policy. So long as a policy contains the required

“statements” there is no basis in the CEA for anyone, including the Chief

Electoral Officer, to say anything about the substance of those “statements”.¹⁹³In

¹⁸⁸Similarly, it argues that, if the Commissioner were to “second guess whether a federal political

parties’ collection and use of personal information for federal election purposes was reasonable”

under PIPA, there would be an operational conflict, presumably between PIPA and the CEA. As

best I can understand this point, it suggests that any decision under PIPA about reasonableness

necessarily would create an operational conflict. This is unpersuasive.

¹⁸⁹Liberal Party’s initial submission, paragraph 85.

¹⁹⁰Liberal Party’s initial submission, paragraph 83. The Liberal Party relies here on Constituency

Office, which I discuss further below. It does not support the Liberal Party’s position on

operational conflict.

¹⁹¹Ibid., paragraph 83.

¹⁹²Ibid., paragraph 82.

¹⁹³I acknowledge the guidance jointly issued by the Chief Electoral Officer and the Privacy

Commissioner of Canada, cited by the Liberal Party at paragraph 73 of its initial submission. It

argues that this guidance supports the view that “Parliament intends that Elections Canada be the

final decision-making authority’. It notes that the guidance suggests that anyone with privacy

concerns may contact the party’s privacy officer, “and/or Elections Canada if they have concerns

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any case, PIPA, like the CEA, requires organizations to have policies relating to

their information practices. Section 5 requires them to “develop and follow

policies and practices” necessary to comply with their PIPA obligations, to

develop a process for responding to complaints, and make information about

these things available on request. While the CEA and PIPA policy requirements

are not framed identically, I am not persuaded that an organization cannot

fashion a policy that complies with both statutes. There is no operational conflict

here.

[147] Application of PIPA’s provisions where the CEA is silent would not create

an operational conflict. As the Supreme Court of Canada has repeatedly

affirmed, where a federal law is permissive and the provincial law is more

restrictive, “[t]his has been regularly considered not to constitute an operational

conflict.”¹⁹⁴This surely means that, where a federal law contains no rule on a

matter, there can be no operational conflict with a provincial rule on that matter.

There is no conflict between a regulation on the one hand and the absence of a

regulation on the other.

[148] The NDP submits that Part 16.1 of the CEA “contains extensive provisions

that regulate voter contact by telephone”, but does not require individual consent

to the collection, use or disclosure of a voter’s “personal telephone number”.¹⁹⁵

This is true, but it is equally true that Part 16.1 says nothing about collection, use

and disclosure of telephone numbers or other personal information.¹⁹⁶Sections

348.16 and 348.18 require the keeping of lists of telephone numbers called

during an election period, but have nothing to say about how telephone numbers

are acquired—Part 16.1 is, in other words, silent about collection, use or

disclosure of personal information. There is no operational conflict between Part

16.1 of the CEA and PIPA.

[149] The NDP also contends that PIPA’s provisions conflict with “express

exemptions” in the Telecommunications Act and under Canada’s Anti-Spam Law.

In its reply, the NDP asserts that there “is an actual operational conflict” because

the CEA, and other federal laws, say that it may communicate with electors

without their consent, “while PIPA tells them ‘No’”, meaning that the NDP is

about the accuracy of a party’s policies”, with the Chief Electoral Officer possibly consulting the

Office of the Privacy Commissioner of Canada. Guidance from these two regulators is not a

sound basis for the suggestion that Parliament intends Elections Canada to have final decision-

making authority on privacy matters.

¹⁹⁴Lemare Lake, paragraphs 24 and 25. Commissioner McEvoy made the same point at

paragraph 74 of Courtenay-Alberni.

¹⁹⁵NDP’s initial submission, paragraph 25.

¹⁹⁶Part 16.1 is entitled “Provision of Voter Contact Calling Services”. It regulates political parties’

use of voter calling service providers, regulates those service providers in certain respects, and

requires certain disclosures of information to be made.

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“being told two inconsistent things”.¹⁹⁷

[150] The NDP points to section 41.7 of the Telecommunications Act, which

exempts political parties from CRTC prohibitions against certain

telecommunications.¹⁹⁸The NDP submits that, unlike PIPA, the

Telecommunications Act “specifically balances freedom of expression and

personal privacy”, and the “application of PIPA to Canada’s NDP runs afoul of

this approach.” The NDP also points to section 3(1)(h) of Canada’s Anti-Spam

Legislation, which exempts federal political parties from the prohibition against

sending a “commercial electronic message”—such as email or text messages—

to someone without their consent.¹⁹⁹

[151] The NDP has not pointed to any PIPA provisions that would preclude a

party from communicating with voters without their consent. To the contrary,

PIPA explicitly permits organizations to collect, use or disclose personal

information where that is permitted by law. So, where a federal political party

uses an individual’s contact information obtained under the CEA, or obtained

lawfully in another manner, to communicate with that person by electronic

message or telephone, PIPA permits it. The NDP has not shown how there is, in

this respect, an operational conflict between PIPA and the CEA or the other two

federal statutes just mentioned (which also offer federal political parties

exemptions from federal rules).

[152] Moreover, even if PIPA were to prohibit a federal political party from

calling someone or from sending them an electronic message, as the AGBC

points out it has long been accepted that there is no operational conflict between

a provincial law that is more restrictive than a federal law.²⁰⁰

[153] To sum up, the Liberal Party and the NDP have not identified provisions of

PIPA and the CEA that are in operational conflict, i.e., they have not shown that it

is impossible to comply with both statutes. The same holds for any alleged

operational conflict between PIPA and the Telecommunications Act or between

PIPA and Canada’s Anti-Spam Legislation. These two political parties have not

established that the operational conflict branch of the paramountcy doctrine ousts

PIPA’s application.

Has the “frustration of purpose” branch of paramountcy been shown to

apply?

[154] A party alleging that provincial legislation frustrates the purpose of a

federal enactment is required to establish the purpose of the federal law and to

¹⁹⁷NDP’s reply, paragraph 41.

¹⁹⁸NDP’s initial submission, paragraph 26.

¹⁹⁹Ibid.

²⁰⁰AGBC’s submission, paragraph 74; also see Lemare Lake, paragraph 25.

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show that the provincial legislation is incompatible with that purpose. The burden

is high.²⁰¹

[155] What is the CEA’s purpose? The political parties each frame the CEA’s

purpose somewhat differently, though there are elements of consistency among

their arguments.

[156] The NDP says the CEA’s purpose is to create “uniform rules across the

country so that there is a level playing field for candidates and voters”, while

PIPA’s application would create two sets of rules, one set in British Columbia and

another elsewhere in the country.²⁰²PIPA’s application to federal political parties

would, it says, be “a move backwards to differentiation in the country based on

provincial legislation”.²⁰³The NDP contends, without offering details, that to

“disadvantage political organizations’ capacity to conduct campaigns in one

region of Canada over another carries the risk of skewing” election outcomes.²⁰⁴

[157] The Liberal Party submits that Parliament’s exclusive authority over the

federal electoral process exists to ensure that “federal political parties are

regulated consistently across Canada”, and this “national scheme is frustrated if

the rules regarding personal information…vary across the provinces.”²⁰⁵PIPA’s

application would interfere with achievement of “federal election objectives” by

“altering the balance that Parliament has struck”.²⁰⁶Contrary to Commissioner

McEvoy’s decision in Courtenay-Alberni, the Liberal Party suggests, PIPA’s

application “would frustrate Parliament’s intent that the personal information

practices” of federal political parties “be governed by the tailored provisions in the

Canada Elections Act and not general federal or provincial privacy laws.”²⁰⁷

[158] Like the NDP, the Conservative Party suggests that applying PIPA “to the

conduct of federal electoral organizations would represent a move backwards to

once again differentiating electoral participation in the country based on

provincial legislation, contrary to the clear intentions of Parliament and section 41

of the Constitution Act, 1867.²⁰⁸If PIPA were to apply, the Conservative Party

suggests, “[e]lectoral communications and activities permissible elsewhere in

Canada would be off limits in British Columbia”, as “different restrictions” would

apply.²⁰⁹

²⁰¹Lemare Lake, paragraph 45.

²⁰²NDP's initial submission, paragraph 65.

²⁰³Ibid., paragraph 50.

²⁰⁴Ibid.

²⁰⁵Liberal Party’s initial submission, paragraph 74.

²⁰⁶Ibid.

²⁰⁷Ibid., paragraph 79.

²⁰⁸Conservative Party’s submission, paragraph 43.

²⁰⁹Ibid., paragraph 61.

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[159] The Conservative Party also suggests that PIPA would frustrate federal

political parties’ “ability to campaign and provide all voters with an equal

opportunity to participate in federal elections”.²¹⁰It would “significantly restrict

their ability to communicate with voters”, “add cost and delay”, and mean that the

information of certain voters would not be available to federal political parties for

federal election purposes.”²¹¹

[160] The Supreme Court of Canada has underscored that “clear proof” of a

statute’s purpose is required to establish that a federal law is paramount on the

basis of frustration of federal purpose.²¹²Secondary sources and case law can

assist in identifying a federal purpose, but sufficient evidence is still required.²¹³

[161] The political parties cite excerpts from parliamentary debates, committee

reports and other reports.²¹⁴The NDP says these sources establish that the

CEA’s purpose “is to create a ‘comprehensive set of rules’ for the election of

Members of Parliament, including rules that facilitate communication with

electors and specific rules regarding the protection of privacy of electors.”²¹⁵The

goal of most if not all statutes is to create “a set of comprehensive rules” about

their subject matter. This is not a sufficiently articulated or grounded “federal

purpose”.

[162] The political parties’ reliance on various cases to establish a federal

purpose is also not persuasive. To support its argument that the CEA’s purpose

is to “ensure electoral fairness”, and “govern the activities of registered political

parties”, the NDP cites Thomson Newspapers Co. v. Canada (Attorney

General)²¹⁶and Canadian Reform Conservative Alliance v. Western Union

Insurance Corporation.²¹⁷

[163] Thomson Newspapers involved a Charter challenge to a single section of

the CEA. It was not about paramountcy or other division of powers issues. The

majority’s view about the purpose of section 322.1 of the CEA—which banned

publication of opinion survey information in the latter days of federal

campaigns—does not support the NDP’s characterization of the CEA’s purpose

overall, a characterization that is, in my view, overly general for the purposes of

paramountcy analysis.

²¹⁰Ibid.

²¹¹Ibid.

²¹²Quebec (Attorney General) v. Canadian Owners and Pilots Association, [2010] 2 SCR 356,

2010 SCC 39 [COPA], at paragraph 68. Also see Lemare Lake, paragraph 45.

²¹³Ibid.

²¹⁴These include Elections Canada reports, which in my view are not a proper source of

evidence for Parliament’s purpose in enacting the CEA.

²¹⁵NDP’s reply submission, paragraph 48.

²¹⁶[1998] 1 SCR 877, 1998 CanLII 829 [Thomson Newspapers].

²¹⁷2001 BCCA 274 [Canadian Reform Conservative Alliance].

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[164] In Canadian Reform Conservative Alliance, the issue was whether an

insurance contract required the insurer to defend a defamation claim. The British

Columbia Court of Appeal referred to the purpose of section 259 of the CEA,

which regulated advertising expenditures, as governing political parties’ activities

during an election. This passing reference to the purpose of a single statutory

provision, in a case that did not involve the paramountcy doctrine, also does not

really assist the NDP’s position on the federal purpose of the CEA as a whole.

[165] The Conservative Party relies on Rae v. Canada (Chief Electoral

Officer)²¹⁸and the Liberal Party cites Opitz v. Wrzesnewskyj.²¹⁹In Rae, the

Federal Court had to consider what standard of review should apply to a decision

by the Chief Electoral Officer about a refund of the entry fee that the applicant

and other leadership contestants had paid to the party. In deciding what standard

to apply, Harrington J. said this:

[19] The overall purpose of the Canada Elections Act is to ensure that the

democratic right of adult Canadians to vote is properly respected and that

the whole process from riding nominations, to leadership conventions, to

by-elections and general elections, unfolds on a level playing field. More

particularly, the provisions relating to leadership campaign expenses are

intended to be transparent, to limit the amount of contributions an individual

may make and to prevent party apparatchiks from financially favouring one

leadership contestant over another.

[166] As with the other decisions discussed above, Rae was not a constitutional

case and, in any case, the Court’s comment that the CEA seeks to ensure that

the federal election process “unfolds on a level playing field” is not of much

assistance in establishing the CEA’s federal purpose.

[167] Wrzesnewskyj had to do with a failed federal election candidate’s effort to

disqualify votes. The Supreme Court of Canada stated that it “is well accepted in

the contested election jurisprudence that the purpose of the Act is to enfranchise

all persons entitled to vote and to allow them to express their democratic

preferences” and added that those courts “considering a denial of voting rights

have applied a stringent justification standard.” ²²⁰As with Thomson Newspapers

and Canadian Reform Conservative Alliance, this general observation, in a

decision that did not deal with paramountcy, is not determinative in establishing a

federal purpose for constitutional purposes.

[168] In its reply, the NDP cites a passage from Frank v. Canada (Attorney

General) in which the CEA is described as “a comprehensive statute which

regulates federal elections in Canada”, whose “central purposes are to

enfranchise all persons who are entitled to vote, and to protect the integrity of the

²¹⁸2008 FC 246 [Rae].

²¹⁹2012 SCC 55 [Wrzesnewskyj].

²²⁰Wrzesnewskyj, paragraph 35.

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democratic process”.²²¹This passage, which cites Wrzesnewskyj, goes on to say

that the CEA “establishes specific rules with respect to qualification as an elector

and to voting entitlements, as well as voting mechanisms, in pursuit of its broad

enfranchising purpose.” Frank was a Charter case, not a paramountcy case.

[169] The political parties have characterized the CEA’s purpose in terms such

as “fairness”, “uniformity”, avoidance of “differentiation” in rules, ensuring a “level

playing field”, and “consistency of regulation” of “federal electoral purposes”.

They contend that compliance with PIPA would be a backward step, would result

in application of different rules in British Columbia than elsewhere, would render

the playing field uneven, could skew election outcomes, would harm candidates

and voters, and could possibly disenfranchise voters.

[170] These are, as hinted above, very general, broad assertions of both

statutory purpose and harm, amounting to pretty dire predictions for the impact

on elections if PIPA were constitutionally applicable to these political parties.

Setting aside the absence of details in the political parties’ submissions or

evidence to support these predictions, it is reasonable to suggest that the

purposes claimed for the CEA—“fairness”, “uniformity”, avoidance of

“differentiation” in rules, ensuring a “level playing field”, and “consistency of

regulation—are goals common to all statutes.

[171] Again, the Supreme Court of Canada has made it clear that the purpose of

federal legislation “should not be artificially broadened”.²²²Viewed in light of that

caution, and in light of guidance in other cases, I am not persuaded that these

legislative objectives are proper “federal” purposes for a frustration-of-federal-

purpose analysis.

[172] Despite this, it is appropriate to continue the analysis given the statements

about the CEA’s purpose in Rae, Wrzesnewskyj and the other cited cases. Rae

suggests the CEA’s purposes are to respect the right to vote and that elections

unfold on a level playing field. Wrzesnewskyj speaks of enfranchising those who

are entitled to vote and allowing them to express their democratic preferences.

Even if I were to accept that these are the CEA’s “federal purposes”, the political

parties have not established how PIPA’s application would frustrate a federal

purpose.

[173] Again, they argue that, because PIPA’s application would mean that the

personal information-related rules in British Columbia differ from those

elsewhere, there will be an uneven playing field, inconsistency, unfairness, harm

to British Columbia voters’ participation in democracy, and even the skewing of

election outcomes. Yet, as with other aspects of their challenges to PIPA’s

application, they have not offered details of how PIPA would prevent them from

221

2019 SCC 1 [Frank], paragraph 11.

²²²Lemare Lake, paragraph 23.

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engaging voters in British Columbia so that voters can engage in the democratic

electoral process. Nor have they substantiated their arguments about how PIPA’s

application would risk skewing electoral outcomes or result in the other harms

they assert could arise.²²³

[174] It is not enough to simply say that PIPA’s application would introduce rules

about political parties’ collection, use or disclosure of voters’ personal

information. As the Supreme Court of Canada has said, “permissive federal

legislation, without more, will not establish that a federal purpose is frustrated

when provincial legislation restricts the scope of the federal permission.”²²⁴

[175] PIPA is a law of general application in the province, validly enacted under

provincial heads of authority, and arguments that Parliament intended there to be

no role for a provincial law are not persuasive.²²⁵As the AGBC and the

complainants observe, it is open to Parliament to legislate in respect of federal

political parties’ collection, use and disclosure of personal information in a

manner that creates uniform rules for all parties and unequivocally ousts

provincial legislation. But this possibility is not a basis for a finding that, under the

paramountcy doctrine, PIPA’s application would frustrate a federal purpose.

[176] Nor does Constituency Office establish that PIPA’s application would

frustrate a federal purpose. Again, the adjudicator in that case decided that

section 18 of the Constitution Act, 1867 gives “the federal government”

jurisdiction to “legislate to affect the manner in which an MP’s office operates in

its assistance of constituents”.²²⁶She went on to add the following observations:

[18] It is well recognized that the labour relations and human rights

obligations of federally regulated entities are matters of exclusive federal

jurisdiction. Similarly, the privacy obligations of federal works,

undertakings and businesses are regulated by federal legislation. The

offices of MPs are also subject to federal jurisdiction in this area.

²²³Nor is the political parties’ affidavit evidence persuasive. It essentially mirrors their

submissions, outlined above, and largely consists of the personal opinions of party officials about

the supposed consequences of PIPA’s application to their parties.

²²⁴COPA, paragraph 66. For a recent application of this principle, see Nelson v. Telus

Communications Inc., 2021 ONSC 22, affirmed 2021 ONCA 751 [Nelson], where the Court

cautioned that “more restrictive provincial legislation in an area in which the Federal Government

has legislated without more will not establish that a federal purpose has been frustrated.” Nor

does Law Society of British Columbia v. Mangat, [2001] 3 SCR 113, 2001 SCC 67, drive to a

different outcome. The Court concluded that, while it was possible to comply with both the

provincial and the federal provisions, “[w]here there is an enabling federal law, the provincial law

cannot be contrary to Parliament’s purpose” (at paragraph 72). The Court then added that “in this

case, it is impossible to comply with the provincial statute without frustrating Parliament’s

purpose” (paragraph 73). It does not follow from this, however, that either impossibility of dual

compliance or frustration of federal purposes exists here, noting—as did Commissioner McEvoy

at paragraph 77 of Courtenay-Alberni—that the Court later distinguished Mangat in COPA.

²²⁵In this respect, the AGBC’s reliance on Nelson is well placed.

²²⁶Constituency Office, paragraph 17.

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[19] It is significant that the federal government has not extended

the Privacy Act or PIPEDA to cover MPs. Where the federal government

has declined to impose privacy obligations on federal MPs, it is not open to

provincial legislation to do so. The fact that both FIPPA and PIPA exclude

the activities of MLAs from their scope confirms that a legislature may

indeed decide to exclude legislators from the scope of privacy

legislation. The fact that MPs are not explicitly excluded from the provincial

legislation simply reflects the fact that federal legislators are not subject to

provincial jurisdiction in that regard.

[20] The result is the same whether obtained by the application of the

doctrine of interjurisdictional immunity or the doctrine of federal

paramountcy. With respect to the former, I find that the activities of an

MP’s office in obtaining and managing information are integral to the MP’s

ability to carry out her or his activities in assisting constituents. With

respect to the latter doctrine, I find that the fact that Parliament has enacted

legislation addressing the privacy obligations of federal governmental

bodies and has not included MPs in the operation of that legislation means

that the provincial legislation cannot operate to frustrate the federal

purpose in that regard.

[177] These comments were not, in my view, a necessary basis for the decision,

which focused on section 18 of the Constitution Act, 1867. In any case, the

entirety of the adjudicator’s analysis of interjurisdictional immunity and

paramountcy is found in the last paragraph quoted above and, with deference,

that analysis is not persuasive.

[178] Respecting her conclusion that the paramountcy principle ousts PIPA’s

application, she observed that Parliament had enacted privacy legislation

applying to “federal governmental bodies”, observed that Parliament had not

extended the legislation to Members of Parliament, and stated that this “means

that the provincial legislation cannot operate to frustrate the federal purpose in

that regard.”

[179] The adjudicator did not identify the “federal purpose” of the laws she

mentioned and, in any case, did not explain the basis for her conclusion that

PIPA’s application to a Member of Parliament would frustrate that purpose.²²⁷

She mentioned no PIPA provisions, or federal legislation, for example, in

concluding that PIPA would frustrate a federal purpose. Constituency Office is

not persuasive in the circumstances at hand and I decline to apply it.To

conclude, the political parties have not established that application of PIPA’s

rules would, even if they are more restrictive than the federal legislation, frustrate

²²⁷This comment clearly calls on the second branch of the paramountcy doctrine, frustration of

purpose, not the first, operational conflict, branch.

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a federal purpose.

Does the interjurisdictional immunity doctrine apply?

[180] The interjurisdictional immunity doctrine supports allocation under the

Constitution Act, 1867 of areas of legislative authority for Parliament and for the

provincial legislatures. It does so by preventing an otherwise valid law from

applying to a federal or provincial matter where that would impair a core power of

the other legislature.²²⁸

[181] The first step in the interjurisdictional immunity analysis is to decide

whether the law in question, in this case PIPA, affects the core of a head of

legislative authority assigned to the other level of government. If it does, the next

step is to assess whether it impairs the exercise of the core legislative

competence of the other government²²⁹or impairs that which is “absolutely

indispensable or necessary to enable an undertaking to carry out its mandate in

what makes it specifically of federal (or provincial) jurisdiction.”²³⁰It is clear from

the cases that impairment requires something more than the mere application of

a law—its application must impair, not just affect, exercise of the core legislative

competence of the other government.

[182] The Supreme Court of Canada has emphasized that interjurisdictional

immunity is a doctrine of limited application and is generally reserved for

situations already covered by precedent, although this is not a hard and fast

rule.²³¹The Supreme Court has indicated that “If a case can be resolved by the

application of a pith and substance analysis, and federal paramountcy where

necessary, it would be preferable to take that approach, as this Court did

in Mangat.”²³²

[183] The AGBC accepts that, for present purposes, the federal political parties’

ability to communicate with voters lies within the core of Parliament’s jurisdiction

over elections to Parliament²³³but contends that the political parties have not

shown that PIPA’s application would impair that core power. The AGBC points

out that the political parties have not linked their arguments about impairment to

any specific PIPA section (and that some of their submissions appear to

misinterpret PIPA).²³⁴

²²⁸Canadian Western Bank, at paragraphs 33 & 34.

²²⁹COPA, at paragraph 43.

²³⁰Canadian Western Bank, paragraph 77.

²³¹Ibid., paragraphs 77 and 78.

²³²Ibid.

²³³AGBC submission, paragraph 49.

²³⁴AGBC’s submission, paragraphs 58 and 59.

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[184] The complainants cite the absence of case law applying interjurisdictional

immunity in this context, adding that this generally justifies proceeding straight to

the paramountcy analysis. They add that, in any event, PIPA does not impair an

aspect of federal power that “has been absolutely indispensable or necessary to

enable Parliament…to achieve the purpose for which exclusive legislative

jurisdiction was conferred.”²³⁵The complainants submit that PIPA “has nothing to

do with regulating elections” or federal political parties’ participation in them; they

suggest that PIPA is, as the Commissioner concluded in Courtenay-Alberni,

solely concerned with regulating personal information practices.²³⁶

[185] As regards the complainants’ point that interjurisdictional immunity has not

been applied in a similar case, I take that point but set it aside because the

political parties’ arguments on the merits are in any event not persuasive.

[186] The Liberal Party says that, in Canadian Western Bank, the Supreme

Court of Canada referred to McKay “as a precedent for interjurisdictional

immunity being applied with respect to federal elections”.²³⁷The Supreme Court

did refer to McKay but did so in discussing the risk that interjurisdictional

immunity could potentially apply to all “activities” within Parliament’s jurisdiction.

The Supreme Court’s reference to McKay must be viewed in the light of its

observation that a

… broad application of the doctrine to ‘activities’ creates practical problems

of application much greater than in the case of works or undertakings,

things or persons, whose limits are more readily defined. A broad

application also appears inconsistent, as stated, with the flexible federalism

that the constitutional doctrines of pith and substance, double aspect and

federal paramountcy are designed to promote....It is these doctrines that

have proved to be most consistent with contemporary views of Canadian

federalism,

which

recognize

that

overlapping

powers

are

unavoidable. Canadian federalism is not simply a matter of legalisms. ²³⁸

[187] It is also worth noting this word of caution:

Excessive reliance on the doctrine of interjurisdictional immunity would

create serious uncertainty. It is based on the attribution to every legislative

head of power of a “core” of indeterminate scope — difficult to define,

except over time by means of judicial interpretations triggered

serendipitously on a case-by-case basis. The requirement to develop an

abstract definition of a “core” is not compatible, generally speaking, with

the tradition of Canadian constitutional interpretation, which favours an

incremental approach. While it is true that the enumerations of ss. 91 and

²³⁵Complainants' initial submission, paragraph 76, quoting from Canadian Western Bank,

paragraph 77.

²³⁶Complainants' initial submission, paragraph 77.

²³⁷Ibid., paragraph 93.

²³⁸Canadian Western Bank, paragraph 42.

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92 contain a number of powers that are precise and not really open to

discussion, other powers are far less precise, such as those relating to the

criminal law, trade and commerce and matters of a local or private nature

in a province. Since the time of Confederation, courts have refrained from

trying to define the possible scope of such powers in advance and for all

time….²³⁹

[188] At all events, the reference in Canadian Western Bank to McKay does not

mean that McKay is a precedent the application of which ousts PIPA’s

application on the basis of interjurisdictional immunity.

[189] As for how PIPA’s application would impair the core of a federal power,

the Liberal Party says that PIPA “impairs a vital part of federal elections law:

access to the electorate.” ²⁴⁰It elaborates as follows:

To encourage participation in the Canadian electoral system, federal

political parties require access to Canadians via the use of their personal

information. Political parties’ needs for personal information are unique.

They must be able to access and use personal information in order to

communicate messages, which is vital to the successful functioning of

Canadian democracy. The Liberal Party uses personal information to

engage with voters, and it is better placed to mobilize democratic

participation if it can understand and speak to the interests and priorities

that matter most to the voters. Further, there must be uniform and equal

treatment of all members of the Canadian electorate.²⁴¹

[190] The Liberal Party adds this:

Federal political parties are subject to the tailored privacy requirements²⁴²

under the Canada Elections Act. Subjecting them to PIPA would be an

impermissible application of an otherwise valid provincial law to a federal

matter. Forcing federal political parties to submit to PIPA’s collection,

use and disclosure requirements would impair federal political parties from

properly accessing Canadian voters.²⁴³

[191] The Liberal Party does not offer details to support its contention that

PIPA’s application would impair the ability of federal political parties to “properly”

access Canadian voters (noting again that PIPA would authorize them to collect,

use and disclose voters’ contact information to communicate with them in

accordance with the CEA).

²³⁹Ibid., paragraph 43.

²⁴⁰Liberal Party’s initial submission, paragraph 92.

²⁴¹Ibid., citations omitted.

²⁴²Respecting the CEA’s “tailored privacy requirements”, as underscored above the CEA permits

federal political parties to use voters’ information to communicate with them and, while it also

requires the filing of privacy policies containing “statements”, it imposes no substantive

requirements on federal political parties’ privacy practices.

²⁴³Ibid., paragraph 95.

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[192] The Liberal Party’s appeal to Bastarache J.’s concurring reasons in British

Columbia (Attorney General) v. Lafarge Canada Inc.,²⁴⁴as authority for the

proposition “that a provincial law cannot fill a gap left by the absence of federal

legislation or action”, is also unpersuasive.²⁴⁵Bastarache J. did refer to a

provincial law not being able to fill a “gap”, but did so in a sentence that begins by

making it clear that this is the case only for provincial laws that have been “found

inapplicable to a federal undertaking or matter by reason of interjurisdictional

immunity”.²⁴⁶This is further emphasized by the preceding paragraph of his

reasons, where he had this to say about the nature of interjurisdictional immunity:

Because of this focus on jurisdiction rather than action, there need not be

any federal legislation or executive action “occupying the field” for federal

immunity to be triggered with respect to an area of federal legislative

authority. This is one of the key facets of the immunity doctrine; the mere

fact that a provincial law or municipal by-law affects a vital part of an area

of exclusive federal jurisdiction is enough to render it inapplicable with

respect to a federal undertaking, regardless of whether or not Parliament

has itself enacted any laws or taken any specific action with respect to the

jurisdictional area or the undertaking.²⁴⁷

[193] Nor do I find persuasive the Liberal Party’s reliance on Canadian National

Railway and British Columbia (Delegate of the Director, Environmental

Management Act), Re,²⁴⁸a decision of the British Columbia Environmental

Appeal Board. That case dealt with application of a provincial environmental rule

to interprovincial railways whose trains carried oil, which federal law prevented

them from refusing to do.²⁴⁹The railways were also subject to what the Board

characterized as “a federal regime of legislation governing all aspects of their

operations including rail safety, security, liability and insurance, dangerous goods

requirements, and emergency response plans and preparedness”.²⁵⁰The

comprehensive federal legislative scheme included the Canada Transportation

Act, the Railway Safety Act, the Transportation of Dangerous Goods Act, 1992,

and regulations, protective directions, and rules issued under those statutes.

[194] Against this backdrop, orders made under British Columbia’s

Environmental Management Act would have required the railways to provide

information at regular intervals about the nature of their shipments of crude oil in

British Columbia, including location-specific information and volumes, information

²⁴⁴2007 SCC 23 [Lafarge].

²⁴⁵Liberal Party’s initial submission, paragraph 97.

²⁴⁶Lafarge, paragraph 111.

²⁴⁷Ibid., paragraph 110.

²⁴⁸2020 Carswell BC 1398 [CNR].

²⁴⁹CNR, paragraph 20.

²⁵⁰Ibid., paragraph 21.

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that the orders indicated the provincial government intended to publish.²⁵¹The

orders would also have permitted the government to request changes in

shipments.

[195] The Liberal Party submits that the Board “concluded that operational

planning for a railway crossing provincial boundaries should not have to be

modified and adjusted every time the railway crossed provincial borders” and

submits that “[f]ederal political parties should also not be subjected to modified

and adjusted privacy legislation in each province.”²⁵²

[196] It is true that the Board found that interjurisdictional immunity applied, but

it did so in the alternative to its main finding, which was that the provincial

provisions were invalid based on a pith and substance analysis. It is also the

case that the Board applied the interjurisdictional immunity doctrine on the basis

that there were several precedents that supported its application.

[197] Moreover, it is also reasonable to think that the Board was alive to this

observation in Canadian Western Bank, which was cited to the Board:

While the text and logic of our federal structure justifies the application of

interjurisdictional immunity to certain federal “activities”, nevertheless, a

broad application of the doctrine to “activities” creates practical problems

of application much greater than in the case of works or undertakings,

things or persons, whose limits are more readily defined.²⁵³

[198] The decision in CNR, which involved railways—a classic example of a

federal undertaking—of course turns on its facts. It certainly does not follow from

CNR that PIPA’s application to federal political parties would result in “modified

and adjusted privacy legislation in each province” in a manner contrary to the

interjurisdictional immunity doctrine.

[199] The Conservative Party submits that Parliament has exclusive power over

federal elections and therefore federal political parties, and their activities in

collecting, using and disclosing personal information, are “integral to the

functioning of federal elections.”²⁵⁴It submits that PIPA, as provincial legislation,

cannot frustrate the CEA’s purpose “by undermining federal political parties’

ability to use voter information for the purposes of a federal election”.²⁵⁵

The Conservative Party does not particularize how PIPA would undermine its

ability to use voter information for federal elections.

²⁵¹Ibid., paragraphs 2-4.

²⁵²Liberal Party’s initial submission, paragraph 96.

²⁵³Canadian Western Bank, paragraph 42. The Board quoted this passage, which the

respondents had cited.

²⁵⁴Ibid., paragraph 65.

²⁵⁵Ibid.

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[200] The NDP argues that “[c]reating restrictive rules for federal political parties

and their communications with electors impairs Parliament’s ability to create and

administer a national electoral system”, and PIPA’s application “impairs the

constitutional and legislative objective of a uniform system for federal elections

across Canada.”²⁵⁶It adds that PIPA’s restrictions “impair Parliament’s ability to

legislate and strike a balance between individual privacy rights and rights of

Canadian voters to meaningfully participate in the democratic process.”²⁵⁷The

NDP does not offer details in support of these claims.

[201] All three parties rely on Constituency Office in support of their

interjurisdictional immunity arguments. As noted earlier, the adjudicator in

Constituency Office observed that the paramountcy and interjurisdictional

immunity doctrines would lead to the same outcome as her finding about section

18 of the Constitution Act, 1867. Regarding interjurisdictional immunity, she

found that the activities of a constituency office are integral to a Member of

Parliament’s ability to carry out her or his activities in assisting constituents and

stopped there.

[202] The required first step in the analysis, however, is to assess whether the

law in question intrudes on the core of a federal head of legislative authority. The

adjudicator said that the activities of a Member of Parliament’s office “in obtaining

and managing information are integral” to the ability to assist constituents.

Although she did not say so, perhaps she considered these activities to be at the

core of a federal head of legislative authority. Even assuming this was her intent,

however, she did not go on, as required, to consider whether the effect of PIPA’s

application would be such that it impaired, in the meaningful sense required by

the cases, the exercise of the core federal power.²⁵⁸With deference, the

adjudicator’s interjurisdictional immunity analysis—which applied, of course, to

Members of Parliament and not federal political parties under the CEA—is not

persuasive, and I decline to apply it here.

[203] Again, PIPA is devoid of any reference to elections or anything to do with

them. It is concerned with regulating the collection, use and disclosure of

personal information. It enables collection, use and disclosure of personal

information as permitted by the CEA. It enables organizations’ collection, use and

disclosure of personal information in other ways, including with consent. Its

privacy policy requirements are by no means inconsistent with those in the CEA.

Without more, I do not see how PIPA’s application would affect that which “is

²⁵⁶NDP’s initial submission, paragraph 58.

²⁵⁷Ibid.

²⁵⁸The adjudicator cited Canadian Western Bank, which was decided earlier the same year, but

did not discuss it. She also cited Lafarge but did not discuss it either. As the AGBC fairly notes,

the adjudicator did not have the benefit, writing in 2007, of the Supreme Court of Canada’s view,

in COPA (at paragraph 66) and in Lemare Lake (at paragraph 48), that application of provincial

restrictions in an area where federal legislation is permissive is not enough to establish frustration

of a federal purpose.

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absolutely indispensable or necessary” to enable a federal political party to carry

out its mandate “in what makes it specifically of federal… jurisdiction.”²⁵⁹

[204] Even assuming PIPA did have such an affect, I am not persuaded that it

would in the required sense impair the exercise of the core legislative

competence of Parliament. This is so even in the light of the Supreme Court of

Canada’s acknowledgement that there will be cases where application of a

provincial statute would in effect frustrate the purpose of a federal law even if it

did not result in a direct violation of the federal statute’s provisions, where

Parliament’s intention is relevant.²⁶⁰

[205] As the Supreme Court observed in Canadian Western Bank, it has never

signalled an intention to revive the “occupied field” concept it rejected more than

60 years ago: the “fact that Parliament has legislated in respect of a matter does

not lead to the presumption that in so doing it intended to rule out any possible

provincial action in respect of that subject.”²⁶¹

[206] I am not persuaded that PIPA’s application would “impair” the exercise of

Parliament’s authority as regards 2018 amendments to the CEA. Nor am I

persuaded that PIPA’s application would frustrate Parliament’s purpose in

enacting the CEA, including in the light of the Parliamentary and other debates

surrounding the 2018 amendments. The political parties have not, in the upshot,

persuaded me that PIPA’s application would impair the exercise of a core federal

legislative power.

[207] For the above reasons, the political parties have not met their burden to

establish that PIPA’s application to federal political parties is ousted by the

interjurisdictional immunity doctrine.

CONCLUSION

[208] To summarize for convenience, for the above reasons I find as follows in

respect of each of the named organizations:

1. Each is an “organization” within the meaning of PIPA.

2. Section 3(2)(c) of PIPA does not oust PIPA’s application.

3. The pith and substance of PIPA is regulation of the collection, use and

disclosure of personal information, and PIPA is a valid exercise of the

provincial head of legislative authority respecting property and civil rights

²⁵⁹Canadian Western Bank, paragraph 77.

²⁶⁰Ibid., paragraph 73.

²⁶¹Ibid., paragraph 74.

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under section 92(13) of the Constitution Act, 1867 and, as a matter of a

local or private nature, under section 92(1) of the Constitution Act, 1867.

4. PIPA is not inapplicable to the named organizations by reason of the

constitutional doctrine of paramountcy.

5. PIPA is not inapplicable to the named organizations by reason of the

constitutional doctrine of interjurisdictional immunity.

6. The question of whether PIPA unconstitutionally infringes the right to vote,

or the freedom of expression, as guaranteed by the Charter is not

addressed, as it would be inappropriate to do so based on the material at

hand.

[209] This decision is undoubtedly lengthy. This flows from my desire to

appropriately engage with the thorough, thoughtful, and very able submissions of

all five participants, for which I am sincerely grateful.

March 1, 2022

ORIGINAL SIGNED BY

___________________

David Loukidelis QC

OIPC File Nos.: P19-82112, P19-82122

P20-85771, P19-82123