Commercial Litigation and Dispute Resolution Blog

This post was submitted by Lawson Lundell guest author Euan Sinclair, Director, Knowledge Management.

In the absence of a national identity card, many Canadians are routinely required to use their driving licences to prove their identity in the course of business, commerce or travel. But when is it lawful for organizations to record information from the licence to protect themselves against fraud or theft? In a Judgment handed down by the Alberta Court of Appeal last week, the court set out what is reasonable in the circumstances.

The case involved the purchase and subsequent collection of furniture. The furniture company requires that those collecting furniture identify themselves by requesting and recording their driver’s licence number and vehicle licence plate number to combat fraud or theft. That information is stored separately from the purchaser’s information and there is no evidence of disclosure to third parties for marketing or collateral purposes. In this case, the information was supplied, but under objection.

The Court notes that the Alberta Personal Information Protection Act makes frequent use of the concepts of “reasonableness” and “consent” in defining lawful use of personal information. Pivoting on the contemporary use of driving licences as a universally accepted form of identification (rather than just entitling the holder to drive a car), the Court found that it is reasonable to use personal information in this way. Considering that the information was supplied under objection, the Court found that “consent” includes “reluctant consent”. An organization is permitted to refuse to contract unless personal information is provided, so long as this is reasonably necessary.  There is also “acquiesced consent” where customers do not object.

 “Personal Information” is defined in the Act as meaning information about an identifiable individual. The Court drew an important distinction between information that relates directly to the individual and information that relates to an object or property owned by that individual. Thus, a driver’s licence number is personal information, but the number on a vehicle licence plate is not, because it is linked to a vehicle not a person.

The Alberta Court of Appeal held by a 2-1 majority that it can be reasonable for businesses to require that the driving licence number be recorded in certain circumstances, even though it constitutes personal information. As the strong dissenting judgment in this case shows, there is perpetual tension in the competing rights in the collection of personal information. The Alberta Court of Appeal has laid down some useful markers in knowing where the balance should be struck, but look out for an appeal.