On application by a customer of Telus Communications Inc. (“Telus) for local residential service under provisions of the Personal Information Protection and Electronic Documents Act (the “PIPEDA”), the court held that Telus had valid consent under PIPEDA to publish its customers’ personal information in Telus directories. The court also held that PIPEDA did not restrict Telus from charging a fee for the provision of Non-Published Number Service (“NPNS”).

Administrative law – Freedom of information and protection of privacy – Disclosure – Telephone listings – Fee for unlisted numbers

Englander v. Telus Communications Inc., [2003] F.C.J. No. 975, Federal Court of Canada – Trial Division, June 3, 2003, Blais J.

The Applicant Englander, a customer of Telus Communications Inc. (“Telus”) for local residential telephone service, applied to the court for a hearing pursuant to section 14 of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (the “PIPEDA”), contending that (a) the Respondent Telus contravened the PIPEDA by allowing its customers’ listing information to be used without their knowledge and consent in various data banks; (b) under PIPEDA, express consent was required for Telus to use or disclose its customers’ listing information; and (c) Telus’s practice of charging customers for an unlisted number was not authorized by PIPEDA.

The Applicant had previously filed a complaint under PIPEDA to the Privacy Commissioner of Canada (the “Commissioner”) who investigated the complaint and concluded in his report that Telus’s practices were not in violation of PIPEDA and that all the allegations in the complaint were not well-founded.

The court concluded that the application made under section 14 of PIPEDA was neither an appeal of the Commissioner’s report nor an application for judicial review and therefore the court was required to exercise its discretion de novo. However, while the Commissioner was granted no statutory authority to impose his conclusions or recommendations, he was entitled to some deference with respect to decisions clearly within his jurisdiction.

On the question of whether Telus had valid consent under PIPEDA to publish its customers’ personal information in Telus directories, it is a long standing and well established practice of telephone companies to include directory listings as part of residential telephone services. Thus, in addition to being notified of the fact by Telus, customers have a reasonable expectation that unless they subscribe to the Non-Published Number Service (“NPNS”), their listing information will be published in the phone directory. In obtaining consent, reasonable expectation is a relevant consideration.

Section 5(3) of PIPEDA provided that Telus may collect, use or disclose personal information only for purposes that a reasonable person would consider appropriate in the circumstances. There was insufficient evidence that Telus was in violation of that provision. As well, sections 7(1)(d), 7(2)(c.1) and 7(c)(h.1) of PIPEDA, combined with paragraph 1(a) of the Regulations Specifying Publicly Available Information, expressly provided that an organization may collect, use, or disclose personal information without the knowledge or consent of the individual if the information is publicly available. In addition, the Regulatory Impact Statement accompanying the Regulations provided that the Regulation was based on a recognition that some personal information is publicly available for a legitimate purpose, often with the individual’s tacit agreement (e.g. the telephone directory). In these circumstances, it was reasonable to allow organizations to collect, use and disclose the information without adding the requirement to obtain consent. As such, the court found that once a Telus representative has asked a new subscriber how he or she would like his or her listing information to appear in the telephone directory, it was open to the subscriber to ask about the various options available. Once the question had been asked, Telus had valid consent under PIPEDA to publish its customers’ personal information in Telus directories.

On the question of whether PIPEDA restricted Telus from charging a fee for the provision of a Non-Published Number Services (“NPNS”), the court considered Telecom Order CRTC 98-109, a decision issued by the Canadian Radio-Television and Telecommunications Commission (the “CRTC”), on the issue of setting rates for NPNS with regard to privacy concerns. In its decision, the CRTC struck a balance between competing interests (social utility of a directory vs. privacy concerns) and considered it appropriate for telephone companies to provide an unlisted number service at a rate not exceeding $2 per month for residential subscribers. The court held that in accordance with Telecom Order CRTC 98-109, PIPEDA did not restrict Telus from charging a reasonable fee for the provision of NPNS.

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