Peter Murphy Shibley Righton LLP
Privacy Protection
PIPEDA Law and Ontario’s Condominium Corporations Personal Information Protection and Electronic Documents
PIPEDA applies to every organization in Ontario in respect of personal information the organization collects, uses or discloses in the course of commercial activity. The key question, therefore, is whether the organization conducts “commercial activity”. In PIPEDA, “commercial activity” is defined as any transaction, act or conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists. In other words, “commercial activity” is any activity that is commercial.
This definition is extremely unhelpful, and makes PIPEDA’s application to nonprofit organizations, such as condominium corporations, uncertain. According to the Office of the Privacy Commissioner of Canada (PCC), whether an organization will be considered to collect, use or disclose personal information in the course of a commercial activity will vary depending on the facts of each case. However, a review of the PCC’s published case decisions does not reveal a consistent rationale for determining if an organization conducts “commercial activity” and is therefore subject to PIPEDA.
to PIPEDA, even though it charged tuition. The PCC based its decision on the fact that the school’s main activity was education and, as a not-for-profit organization, the school’s objectives did not include earning a profit for its owners.
In PIPEDA Case Summary #2005-309, the PCC decided that a not-for-profit, private daycare was subject to PIPEDA, because it charged a fee for its services.
In PIPEDA Case Summary #2008-389, the PCC considered whether PIPEDA applies to the non-profit Law School Admission Council, which offers law school admissions tests for a fee. The PCC indicated that an organization’s core activities will be the primary factor for determining if the organization is subject to PIPEDA. The PCC decided that PIPEDA applies to the Law School Admission Council because its core activities primarily serve the administrative and organizational needs of its law school members, and not educational or other public purposes.
Subsequently in PIPEDA Case Summary #2006-345, the PCC decided that a notfor-profit private school was not subject
Based on these PCC decisions, it seems the PCC will consider not-for-profit organizations that collect fee payments to CONDOVOICE FALL 2021
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ILLUSTRATION BY JASON SCHNEIDER
Compliance with privacy law is an important part of doing business in Ontario. As part of their legal compliance efforts, Ontario’s condominium corporations often ask if they must comply with Canada’s private sector privacy law, namely the Personal Information Protection and Electronic Documents Act (PIPEDA). To date there is no definitive answer to this question.