A Definition of "Commercial Activity" under PIPEDA

An Ontario court has ruled that there must be something more than a mere "˜exchange of consideration' to characterize an activity as commercial under federal privacy legislation. In finding that the Personal Information Protection and Electronic Documents Act (PIPEDA) did not prohibit the disclosure of the membership list of a non-profit club that was otherwise permitted by law, MacKenzie J of the Ontario Superior Court rejected the argument that non-profit status automatically exempts an organization from PIPEDA. The relevant test is whether specific activities are commercial in nature. The Court also dismissed the respondents' claim that because the information that made up the list had been collected along with a membership fee in expectation of certain benefits and services, that the activity was commercial in nature and therefore subject to PIPEDA. The Court referred to the federal Privacy Commissioner's statement that the collection of membership fees, organizing club activities, compiling lists of members' names and addresses and mailing out newsletters should not be considered commercial activities and concluded that the use of the membership list to contact members to challenge the decision of the club's executive was not governed by PIPEDA. The case is Rodgers v Calvert (8 September 2004), 03-BN-6556 (Ont Sup Ct), online at CanLII: http://www.canlii.org/on/cas/onsc/2004/2004onsc12118.html. Case comment at: http://dww.local/?page_id=1054. Summary by: Jason Young