Article: Employment law myths

In today's National Post, Howard Levitt, counsel to Lang Michener, takes a pretty aggressive stand with respect to PIPEDA. His sentiments about the constitutionality are shared by others, but I was surprised to read that he suggests ignoring PIPEDA. Most privacy lawyers with whom I speak are of the view that PIPEDA should be followed until it is declared to be unconstitutional:

"4. Privacy legislation applies across Canada.

The federal privacy legislation constitutionality provided that, if similar legislation was not passed in each province by January 1, 2004, the federal legislation would apply provincially. Many provinces, including Ontario, have not yet passed Privacy Acts. However, virtually everyone is conducting themselves as if the federal privacy legislation applies. It does not. Despite the wording of that legislation, the federal government lacks the constitutional power to impose privacy legislation on the provinces and no attempt to do so would survive legal challenge. Therefore, contrary to seemingly everyone's belief, there is presently no effective, binding privacy legislation in most of Canada."

This is very aggressive and, at least to this point, many Courts have been applying PIPEDA without hesitation. It is true that the federal government has no constitutional way to regulate the provincially regulated workplace, but PIPEDA does not purport to operate there.