Morgan v. Alta Flights (Charters) Inc., 2006 FCA 121

Date: 20060321

Docket: A-184-05

Citation: 2006 FCA 121   

CORAM:        SEXTON J.A.

                        EVANS J.A.               

                        MALONE J.A.

BETWEEN:

JANICE MORGAN

Appellant

and

ALTA FLIGHTS (CHARTERS) INC.

Respondent

and

THE PRIVACY COMMISSIONER OF CANADA

Added Respondent

Heard at Edmonton, Alberta, on March 21, 2006.

Judgment delivered at Edmonton, Alberta, on March 21, 2006.

REASONS FOR JUDGMENT BY:                                                                                 EVANS J.A.

CONCURRED IN BY:                                                                                                 SEXTON J.A.

MALONE J.A.

Date: 20060321

Docket: A-184-05

Citation: 2006 FCA 121

CORAM:        SEXTON J.A.

                        EVANS J.A.               

                        MALONE J.A.

BETWEEN:

JANICE MORGAN

Appellant

and

ALTA FLIGHTS (CHARTERS) INC.

Respondent

and

THE PRIVACY COMMISSIONER OF CANADA

Added Respondent

REASONS FOR JUDGMENT

(Delivered from the Bench at Edmonton, Alberta, March 21, 2006)

EVANS J.A.

[1]                This is an appeal from a decision of Simon Noël J. of the Federal Court dismissing a complaint by Janice Morgan under section 14 of the Personal Information Protection and Electronic Documents Act, S.C. 200, c. 5 ("PIPEDA"), alleging that her employer, Alta Flights (Charters) Inc., had collected personal information without her consent or knowledge in breach of her rights under PIPEDA. The decision is reported as Morgan v. Alta Flights (Charters) Inc., 2005 FC 421.

[2]                We are not persuaded that, in concluding that no conversations were ever in fact recorded on the recording device hidden in the employees' smoke room, the Judge committed an error of law, or that his finding of fact was vitiated by palpable and overriding error based on the evidence before him.

[3]                Counsel for Ms. Morgan also argued that even if, contrary to his submission, the Judge's finding of fact stands, he erred in law by failing to conclude that the employer was nonetheless engaged in the act of collecting information and that this activity constituted "collects" for the purpose of paragraph 4(1)(a) of PIPEDA.

[4]                We do not agree. In our view, since it was not proved that any conversations had been recorded when the device was discovered, the activities in question constituted merely an unsuccessful attempt to collect personal information. PIPEDA does not expressly prohibit attempts to collect personal information and the word "collects" cannot be interpreted to include them.

[5]                For these reasons, and despite the able arguments of counsel, the appeal will be dismissed without costs.

                                                                                                            "John M. Evans"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-184-05

(APPEAL FROM AN ORDER OF THE HONOURABLE JUSTICE NOËL DATED MARCH 29, 2005, DOCKET NO. T-1066-04)

STYLE OF CAUSE:                                                               JANICE MORGAN v. ALTA FLIGHTS (CHARTERS) INC. AND THE PRIVACY COMMISSIONER OF CANADA

PLACE OF HEARING:                                                         EDMONTON

DATE OF HEARING:                                                           MARCH 21, 2006

REASONS FOR JUDGMENT OF THE COURT BY:        SEXTON, EVANS, MALONE JJ.A.

DELIVERED FROM THE BENCH BY:                             EVANS, J.A.

APPEARANCES:

SOLICITORS OF RECORD: