Opinion: Court gives universities a free pass to infringe privacy — via fpcomment
rights in Canada are patchwork and not robust. But in most provinces public institutions, at least, are prohibited from collecting personal information unless they cannot carry out their activities without it. Under the Ontario Freedom of Information and Protection of Privacy Act , universities may not collect personal information unless it is “necessary to the proper administration of a lawfully authorized activity.
Western can make whatever policies it likes, responded its lawyers. As a self-governing institution, making policies is one of its “activities.” Since it made a policy to collect proof of vaccination, collecting proof of vaccination was its “activity.” The activity of collecting proof of vaccination cannot be administered without collecting proof of vaccination. That information is “necessary to the activity,” they said, and therefore not prohibited.
If that makes your head hurt, it’s not because it’s clever. Universities are indeed self-governing institutions. They have broad powers to govern their spaces. But they are also public institutions subject to the laws of the land. They negotiate their own contracts, but they cannot breach the Employment Standards Act. They set their own financial policies, but they must obey the Income Tax Act. FIPPA is privacy protection law that limits their authority to collect information.
But not according to the Superior Court. In September, the Court accepted Western’s argument and dismissed the students’ challenge. The university’s policy to collect personal information was itself an “activity” under the statute, the judge concluded. The policy “is a ‘lawfully authorized activity’ … The activity is the Policy.” By creating a policy to collect information, Western had exempted itself from the prohibition.
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