Oshawa second-hand store bylaw invades privacy

Earlier this week, the Ontario Court of Appeal, in Cash Converters Canada Inc. v. Oshawa (City) (July 4, 2007) (an appeal from Cash Converters Canada Inc. v. Oshawa (City), 2006 CanLII 3469 (ON S.C.)), overturned a City of Oshawa Bylaw that required sellers of second hand goods to collect detailed personal information about those who sell second hand goods to the stores. The bylaw was inconsistent with the Municipal Freedom of Information and Protection of Privacy Act.

Here's what the Toronto Star had to say about it:

TheStar.com - News - Oshawa second-hand store bylaw invades privacy: Court

Tracey Tyler

LEGAL AFFAIRS REPORTER

The Ontario Court of Appeal has struck down sections of a controversial Oshawa bylaw that require second-hand dealers to collect detailed personal information from people who sell them goods and transmit the data to police.

The bylaw conflicts with provincial privacy legislation, which requires the collection and retention of personal information to be strictly controlled, the court ruled Wedneday, The 3-0 decision could influence challenges to similar bylaws in other parts of the country, including Alberta and British Columbia.

“This decision comes at a time when cities are gaining broader law-making powers,” said David Sterns, a lawyer representing the Oshawa franchise of Cash Converters Canada Inc., a second-hand store that challenged the bylaw.

“The court has sent a strong signal that all forms of information gathering and surveillance by municipalities are subject to the public’s overriding right to privacy.”

Under the Oshawa bylaw, passed by the city in 2004 as part of a new licensing system for second-hand dealers, stores were required to record the name, address, sex, date of birth, phone number and height of their vendors, who also had to produce three pieces of identification, such as a driver’s licence, birth certificate or passport.

“This information is then transmitted and stored in a police data base and available for use and transmissions by the police without any restriction and without any judicial oversight,” said Justice Kathryn Feldman said, writing on behalf of Associate Chief Justice Dennis O’Connor and Justice Paul Rouleau.

Store owners were required to send reports to police at least daily, in some cases at the time of purchase. The city argued the bylaw was meant to protect consumers from purchasing stolen goods.

But the municipality offered no evidence of a growing problem involving the sale of stolen goods to second-hand dealers, said Feldman.

Nor is there evidence that unscrupulous people are more likely to be deterred by the electronic collection and transmission of personal information, she said.

In 2003, Cash Converters purchased more than 28,000 used items from people in 2003. About 30 of those were seized by police in connection with criminal investigations.

It’s unknown whether any were confirmed as stolen, the court said.

The bylaw did not apply to pawn shops, which are provincially regulated.

See, also, James Daw's column: TheStar.com - columnists - New ruling stands up for privacy.