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), 37th Parl., 4th Sess. 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).3 The 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.4 These 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  
1 SC 2000, c 9.  
2 SBC 2003, c 63.  
3 As noted later, this request was also made to other federal political parties, but they are not  
involved in this proceeding.  
4 Complainants’ 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.  
5 The letter also referred to “the common contractual promises” the political parties were alleged  
to have made through their privacy policies.  
6 The political parties’ responses are found in Exhibits 35-47 of the complainant affidavit.  
7 The 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, 1867.8 Nor 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.10 The Conservative Party agreed.11 The NDP did not  
comment on the stated issue but said “there must an appropriate process to  
8 The Constitution Act, 1867, 30 & 31 Vict, c 3.  
9 July 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 arguedas is argued herethat the  
federal Personal Information Protection and Electronic Documents Act applied to it because it  
was an “organization” as defined in PIPEDA.  
10 August 10, 2021, letter from counsel to the Liberal Party.  
11 August 16, 2021, letter from counsel to the Conservative Party.  
 
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resolve any controverted facts prior to proceeding.”12 The 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.13 It 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 Act15 on 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?  
12 August 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.  
13 August 16, 2021, letter from counsel to the Conservative Party.  
14 SC 2000, c 5.  
15 RSBC 1996, c 68.  
16 In 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  
issuesand there is considerable commonality thereto make their case, with  
evidence and legal argument, and to respond to each other and the AGBC.21 No  
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?  
17 October 15, 2021, letter from NDP counsel.  
18 NDP reply, paragraph 5.  
19 October 29, 2021, letter from counsel to the Conservative Party to the Attorney General of  
Canada and AGBC.  
20 October 29, 2021, letter from counsel to the Liberal Party to the Attorney General of Canada  
and AGBC.  
21 In 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.22 The 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”.23 It  
noted that, of the 22 federally registered political parties, only four are  
respondents in this proceeding.24 The 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  
22 This is noted at paragraph 22 of the Conservative Party’s initial submission.  
23 Conservative Party’s initial submission, paragraph 12.  
24 Ibid., paragraph 11.  
25 Liberal 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.27 Only 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  
objectionin response to a complaint about them, not about other political  
partiesthat 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  
26 October 25, 2021, email from counsel to the Conservative Party.  
27 PIPA, section 48(1)(a).  
28 AGBC 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.”29 Under 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”.32 This is, of course, very far  
from determinative, but this does, as the Supreme Court said, “invite the Court to  
29 June 25, 2021, delegation instrument.  
30 Courtenay-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.  
31 Canadian Charter of Rights and Freedoms, Part 1, Constitution Act, 1982, enacted as  
Schedule B to the Canada Act 1982, 1982, c 11 (UK).  
32 Kitkatla 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.34 While 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.36 As 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  
33 Ibid., at paragraph 73. Also see OPSEU v. Ontario (Attorney General), [1987] 2 SCR 2, 1987  
CanLII 71, at pages 19-20.  
34 As 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).  
35 The 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.  
36 This 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.38 Its chief agent under the CEA is The  
Federal Liberal Agency, a corporation incorporated under the Canada Not-for-  
profit Corporations Act39 and is registered in each territory and province where  
that is required.40 The Liberal Party also has electoral district associations in  
each riding across Canada and these are registered under the CEA.41 The  
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 boardswhich 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.44 It 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  
37 Complainant affidavit, paragraph 58, and Exhibit “34”.  
38 Paragraph 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.  
39 SC 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.  
40 This 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.  
41 Cardill affidavit, paragraphs 5 and 6.  
42 October 28, 2021, affidavit sworn by one of the complainants (complainant affidavit),  
paragraph 10.  
43 Cardill affidavit, paragraphs 8 and 9.  
44 Ibid., paragraph 15.  
45 Ibid., paragraphs 16 and 17.  
46 Cardill affidavit, paragraph 24.  
47 Ibid., 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.50 The 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.51 The Conservative Party has registered electoral district associations  
throughout Canada, including in each British Columbia electoral district.52 The  
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.54 It 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.56 The  
Conservative Party also says that federal political parties and candidates are  
entitled to receive information disclosing which individuals voted, which enables  
48 Liberal Party initial submission, paragraph 40.  
49 Stated facts, paragraphs 8 and 9. This is not disputed by the Liberal Party in its evidence or  
argument.  
50 Conservative Party’s initial submission, paragraph 7.  
51 Ibid.  
52 Conservative Party’s submission, paragraph 9; also see the complainant affidavit, paragraph  
21.  
53 Ibid., paragraph 25.  
54 Conservative Party’s initial submission, paragraph 14.  
55 Ibid., paragraph 14.  
56 Paragraph 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.60 The 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,62 including in each  
of British Columbia’s electoral districts.63 The 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.”65 These and other activitiessuch as  
maintaining party membership and fundraisinginclude use of the electoral list  
under the CEA, “as well as collecting personal information directly from potential  
voters.”66 The 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  
57 Conservative Party’s submission, paragraph 31, and paragraph 11 of the Bailey affidavit.  
58 Bailey affidavit, paragraph 12.  
59 Ibid., paragraph 14.  
60 NDP 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.  
61 Stated facts, paragraph 17. This is not disputed by the NDP in its evidence or argument.  
62 NDP’s initial submission, paragraph 7.  
63 Complainant affidavit, paragraph 31.  
64 Complainant affidavit, paragraph 33.  
65 Affidavit of Jesse Strean Calvert (Calvert affidavit), paragraph 3.  
66 Ibid.  
 
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“significant internal protections” for personal information.67 Its 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.69 The 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.71 During 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  
67 Ibid., paragraphs 3-6.  
68 Exhibit 1 to the Calvert affidavit.  
69 Stated facts, paragraph 21, and complainant affidavit.  
70 Again, this is a stated fact, noting that the complainant affidavit also provides relevant  
evidence.  
71 Complainant affidavit, paragraph 36.  
72 Ibid., paragraph 40.  
73 Ibid., paragraph 59.  
74 Complainants’ initial submission, paragraph 13, and Appendix “A”, citing the complainant  
affidavit, paragraph 44.  
75 Complainant affidavit, paragraphs 43(a), (b) and (c), complainants’ initial submission,  
paragraph 12. This is also attested to in the political parties’ evidence.  
76 NDP: 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.79 The 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 Québec80 should 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.82 The  
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.  
77 Stated facts, paragraph 28. None of the political parties disputed this stated fact.  
78 NDP's initial submission, paragraph 6.  
79 NDP reply, paragraph 56.  
80 2012 SCC 12.  
81 AGBC submission, paragraph 105.  
82 Complainant’s reply, paragraph 82.  
83 Ibid., paragraph 83.  
   
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question “in a factual vacuum” and, like him, I decline to do so.84 The 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.86 The 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”.88 It 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.89 It 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,90 and 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,92 a 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.”93 Applying this  
84 Courtenay-Alberni, paragraph 91 (citing MacKay v. Manitoba, [1989] 2 SCR 357, 1989 CanLII  
26, at page 366.  
85 This 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.  
86 Liberal Party’s initial submission, paragraph 56.  
87 Ibid., paragraphs 58-59.  
88 Ibid., paragraph 61.  
89 Liberal Party’s reply, paragraphs 14-17.  
90 Ibid.  
91 Liberal Party’s initial submission, paragraphs 60-61.  
92 [1965] SCR 798, 1965 CanLII 3 [McKay].  
93 McKay, 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.94 A 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.”96 He 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”.98 As the British Columbia Court of Appeal  
recently put it, citing Desgagnés and McKay, “Where multiple interpretations of a  
94 AGBC’s submission, paragraph 20.  
95 Ibid., page 807.  
96 Ibid., page 812.  
97 Ibid., page 810.  
98 2019 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”.100 Applying 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 partieswhich are, as I have found, active in the province and  
collect personal information of residentsand I see no plausible reason to think  
that the Legislature intended any other meaning. PIPA’s legislative purposes do  
not support another interpretation.101 Nor 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.102 The NDP submits that  
section 3(2)(c) of PIPA excludes federal political parties from PIPA’s scope  
because PIPEDA applies to federal political parties.103 It 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  
99 Brown Bros. Motor Lease Canada Ltd. v. Workers’ Compensation Appeal Tribunal, 2022 BCCA  
20 (CanLII).  
100 For a recent affirmation of this principle, see R. v. Khill, 2021 SCC 37, paragraph 77.  
101 The legislative objectives of PIPA are outlined below. I have considered them in addressing  
this interpretive issue.  
102 NDP's initial submission, paragraph 5.  
103 Ibid., paragraph 43.  
104 Ibid., 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.”105 As 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,106 which it says are  
“relevant to the issues at hand.”107 It also refers to provisions of the  
Telecommunications Act108 and what is commonly known as Canada’s Anti-  
Spam Legislation,109 laws 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.111 An 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  
105 NDP's initial submission, paragraph 10, citing College of Physicians and Surgeons of British  
Columbia v. British Columbia (Information and Privacy Commissioner), 2019 BCSC 354.  
106 SC 2018, c 31.  
107 Ibid., paragraph 11.  
108 SC 1993, c 38.  
109 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.  
110 NDP'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.  
111 For 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.112 The 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.113 Therefore, 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.114 As the NDP puts it, “Parliament  
and the Governor in Council clearly did not intend to subject organizations under  
federal jurisdiction to BC’s PIPA”.115 It 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,  
112 Ibid., paragraph 33.  
113 Section 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.  
114 Ibid., paragraphs 34-40.  
115 Ibid., 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.”117 Like 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  
116 In 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.  
117 PIPEDA, section 3.  
118 Commissioner 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 activitythe 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.  
119 As 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)120 in 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.”123 The  
adjudicator did go on to discuss paramountcy and interjurisdictional immunity—  
this part of the decision is discussed belowbut 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.  
120 2007 CanLII 52750 [Constituency Office].  
121 NDP's initial submission, paragraph 40.  
122 Ibid., paragraph 18.  
123 Ibid., 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.  
124 These 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.  
125 NDP'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.126 Section 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.”127 They 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”.129 The 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.  
126 SOR/2013-221.  
127 Complainants’ reply, paragraph 12.  
128 Ibid., paragraph 15.  
129 Weatherley 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  
130 Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23 [Rogers Communications],  
at paragraph 35.  
131 Ibid., paragraph 38.  
132 Reference re Environmental Management Act (British Columbia), 2019 BCCA 181, at  
paragraph 19. Appeal dismissed: Reference re Environmental Management Act, 2020 SCC 1.  
133 Ibid., 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”.134 It 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 subjectof 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  
134 NDP's initial submission, paragraphs 51 and following.  
135 Ibid., paragraph 56.  
136 Liberal 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”.138 This 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.140 It 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”.142 As 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’”.143 In turn, the law’s practical effects—the  
side effects flowing from its applicationmust 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”.145 Although  
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.146 The 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  
137 References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 [Greenhouse Gas  
Reference], paragraph 51.  
138 Ibid.  
139 Ibid.  
140 Ibid.  
141 Jim Pattison Enterprises Ltd. v. British Columbia (Workers’ Compensation Board), 2011 BCCA  
35 [Jim Pattison Enterprises], at paragraph 77.  
142 Canadian Western Bank, paragraph 28.  
143 Greenhouse Gas Reference, paragraph 70 (citation omitted).  
144 Ibid., paragraph 77.  
145 [2007] 2 SCR 3, 2007 SCC 22 [Canadian Western Bank], paragraph 116.  
146 Ibid.  
147 Ibid., 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 Actwhich is  
closely aligned with PIPA in substanceaims 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.151 This 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  
148 Ibid., paragraph 56.  
149 Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers,  
Local 401, [2013] 3 SCR 733, 2013 SCC 62, at paragraph 19.  
150 Ibid.  
151 A statute’s title is intrinsic evidence of its nature and purpose: Greenhouse Gas Reference,  
paragraphs 58-61.  
152 Statutory 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.155 One example is the authority for organizations to  
collect, use or disclose personal information without consent where “required or  
authorized by law”.156 As 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.  
153 British Columbia, Official Report of Debates of the Legislative Assembly (Hansard), 37th Parl.,  
4th Sess. Vol. 14, No. 13 (May 1, 2003), page 6415.  
154 Ibid., page 6416.  
155 The consent exceptions, of which there are over a dozen, are found in sections 6(2) 15, 18  
and 20-22.  
156 Sections 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.157 The 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.159 It 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  
157 This summary is of selected key oversight provisions in Part 11 of PIPA.  
158 Section 56. These would, obviously, have to be investigated and then prosecuted in the  
courts, through the usual prosecutorial channels.  
159 Commissioner 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).160 There 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.161 The 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 informationfalls 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  
160 RSBC 1996, c 106.  
161 It 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.162 In that  
context, certainly, PIPA bears some similarity to the advertising rules at issue in  
Irwin Toy Ltd. v. Quebec (Attorney General).163 Whether 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.164 It 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.”165 It 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  
162 Paragraph 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).  
164 NDP's initial submission, paragraphs 53 and 54.  
165 Ibid., paragraph 55.  
166 Ibid., paragraph 56.  
167 The 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.”168 According 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,170 been 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  
168 McKay, at pages 803-804.  
169 Liberal Party’s initial submission, paragraph 61.  
170 [1987] 2 SCR 2, 1987 CanLII 71 (SCC).  
171 Canadian 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.  
172 As noted earlier, Taschereau C.J.C. made it clear that the constitutional validity of the bylaw  
had not been challenged.  
173 It 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’”.174 The 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”.176 The 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.”177 Bearing 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”,179 and thus “normally favours—except where there is an actual  
conflictthe 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  
174 Saskatchewan (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.  
175 Lemare Lake, at paragraph 19, and Canadian Western Bank, at paragraph 73.  
176 Canadian Western Bank, at paragraph 74.  
177 Ibid., paragraph 75.  
178 Lemare Lake, paragraph 21.  
179 Ibid., paragraph 22.  
180 Quebec (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  
paramountcyi.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.”183 The 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.184 The Conservative Party concedes that there is  
no operational conflict between PIPA and federal law,185 while 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  
181 Lemare Lake, paragraph 23 (citations omitted).  
182 Ibid., paragraph 26 (citations omitted).  
183 AGBC submission, paragraph 64.  
184 Complainants’ initial submission, paragraph 80.  
185 Conservative Party’s initial submission, paragraph 55.  
186 Liberal 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).  
187 Liberal 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.188 Application 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.190 Extending PIPA to federal  
political parties would, it argues, “create an operational conflict” because federal  
political parties “would be told to do inconsistent things.”191 The 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”.193 In  
188 Similarly, 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.  
189 Liberal Party’s initial submission, paragraph 85.  
190 Liberal 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.  
191 Ibid., paragraph 83.  
192 Ibid., paragraph 82.  
193 I 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.”194 This 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.196 Sections  
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 acquiredPart 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.  
194 Lemare Lake, paragraphs 24 and 25. Commissioner McEvoy made the same point at  
paragraph 74 of Courtenay-Alberni.  
195 NDP’s initial submission, paragraph 25.  
196 Part 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.198 The 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  
197 NDP’s reply, paragraph 41.  
198 NDP’s initial submission, paragraph 26.  
199 Ibid.  
200 AGBC’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.202 PIPA’s application to federal political parties  
would, it says, be “a move backwards to differentiation in the country based on  
provincial legislation”.203 The 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.”205 PIPA’s  
application would interfere with achievement of “federal election objectives” by  
“altering the balance that Parliament has struck”.206 Contrary 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, 1867.208 If 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  
201 Lemare Lake, paragraph 45.  
202 NDP's initial submission, paragraph 65.  
203 Ibid., paragraph 50.  
204 Ibid.  
205 Liberal Party’s initial submission, paragraph 74.  
206 Ibid.  
207 Ibid., paragraph 79.  
208 Conservative Party’s submission, paragraph 43.  
209 Ibid., 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”.210 It 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.212 Secondary 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.214 The 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.”215 The  
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)216 and 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 CEAwhich 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.  
210 Ibid.  
211 Ibid.  
212 Quebec (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.  
213 Ibid.  
214 These include Elections Canada reports, which in my view are not a proper source of  
evidence for Parliament’s purpose in enacting the CEA.  
215 NDP’s reply submission, paragraph 48.  
216 [1998] 1 SCR 877, 1998 CanLII 829 [Thomson Newspapers].  
217 2001 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)218 and the Liberal Party cites Opitz v. Wrzesnewskyj.219 In 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.” 220 As 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  
218 2008 FC 246 [Rae].  
219 2012 SCC 55 [Wrzesnewskyj].  
220 Wrzesnewskyj, paragraph 35.  
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democratic process”.221 This 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  
regulationare 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”.222 Viewed 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.  
222 Lemare 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.225 As 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”.226 She 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.  
223 Nor 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.  
224 COPA, 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, notingas did Commissioner McEvoy  
at paragraph 77 of Courtenay-Albernithat the Court later distinguished Mangat in COPA.  
225 In this respect, the AGBC’s reliance on Nelson is well placed.  
226 Constituency 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  
227 This 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 government229 or 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.”230 It is clear from  
the cases that impairment requires something more than the mere application of  
a lawits 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.231 The 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 Parliament233 but 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  
228 Canadian Western Bank, at paragraphs 33 & 34.  
229 COPA, at paragraph 43.  
230 Canadian Western Bank, paragraph 77.  
231 Ibid., paragraphs 77 and 78.  
232 Ibid.  
233 AGBC submission, paragraph 49.  
234 AGBC’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.”235 The 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”.237 The 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  
235 Complainants' initial submission, paragraph 76, quoting from Canadian Western Bank,  
paragraph 77.  
236 Complainants' initial submission, paragraph 77.  
237 Ibid., paragraph 93.  
238 Canadian 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.” 240 It 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).  
239 Ibid., paragraph 43.  
240 Liberal Party’s initial submission, paragraph 92.  
241 Ibid., citations omitted.  
242 Respecting 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.  
243 Ibid., paragraph 95.  
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[192] The Liberal Party