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A RECENT FEDERAL COURT DECISION TO overturn one of the Privacy Commissioner of Canada's first findings under the country's Privacy Act has raised questions about how well the commissioner can enforce the law.

Matthew Englander, a Vancouver-based lawyer who brought a complaint against Telus minutes after the act came into effect four years ago, won a partial victory last November, when an appeals court said Telus did not go to sufficient lengths to inform him of how telephone directory listings could be used.

The complaint involved both the issue of consent (over whether his phone number should be listed in the white pages) and whether Telus should be allowed to charge a $2 fee to keep his number unlisted. The complaint was the first made under the Personal Information Protection and Electronic Documents Act (PIPEDA). According to Englander, Telus's listing policy meant his personal information could be packaged on CD-ROMs and sent to telemarketers, political parties and charities. But George Radwanski, who at the time served as the federal privacy commissioner, concluded the complaint was not well-founded. He also said it passed the act's reasonable person test, which states the "collection, use and disclosure of personal information must be limited to purposes that a reasonable person would consider appropriate in the circumstances." The federal court agreed, but an appeals court overturned those decisions, ordering Telus to reimburse Englander the nearly $12,000 he paid in costs after losing the earlier Federal Court decision.

The about-face comes as the Office of the Privacy Commissioner tries to rebuild its reputation following the disgrace and resignation of Radwanski over his spending habits. Jennifer Stoddart was appointed as Radwanski's replacement last year.

Michael Geist, Canada research chair in Internet and E-Commerce Law at the University of Ottawa, said there was a danger that the Englander case could mean citizens and corporations give the commissioner's findings far less weight than they did initially. They may decide, for example, that the findings aren't enforceable, and more complaints will be taken to the courts instead.

"People were looking to see whether the law had any teeth," he said. "This may turn out to be a case of: 'Be careful what you wish for, you just might get it.'"

Geist and others were commenting on the Englander case last month as part of a teleconference hosted by Synomos Inc.

Heather Black, assistant federal privacy commissioner, said the Commissioner's Office concluded that the fee for an unlisted number was established by the CRTC, and fell under the regulator's jurisdiction, and the CRTC does take privacy into account. As for consent, "it could have been better in terms of a more positive statement, in terms of 'Do you want to be listed?'" she said.

Englander and Telus are still waiting to hear the court's remedy for the case.