As some of our regular readers might recall, in November 2013, the Supreme Court of Canada (“SCC”) released an interesting decision declaring Alberta’s privacy legislation, the Personal Information Protection Act (“PIPA”) unconstitutional, and giving Alberta’s legislature 12 months to come up with something new. In declaring PIPA unconstitutional, the SCC pitted a union’s freedom of expression against an individual’s right to privacy, holding that privacy legislation must be sufficiently flexible to allow a union to collect, use, and disclose personal information without consent for legitimate purposes, including to protect a union’s ability to communicate, to persuade the public, and to use one of its most effective bargaining tools: picketing.
Last month, the Alberta legislature passed the new PIPA which allows a union to collect, use, and disclose personal information without the consent of the individual to whom the information relates in relation to a labour dispute if the personal information is:
- For the purpose of informing or persuading the public about a matter of significant public interest or importance relating to a labour relations dispute involving the trade union;
- Reasonably necessary for that purpose; and
- It is reasonable to collect the personal information without consent for this purpose, taking into consideration the relevant circumstances including the nature and sensitivity of the information.
So what does this mean?
Given how new this legislation is, we don’t know how the courts will apply the new legislation. The SCC decision responded only to two constitutional questions: whether PIPA (as it was previously) violated the constitutionally-protected right to freedom of expression, and if so, whether the infringement could be demonstrably justified in a free and democratic society under s. 1 of theCanadian Charter of Rights and Freedoms.
What the SCC did not decide was whether the Union’s intended use of the personal information – to, among other things, post pictures of employees crossing the picketline on a website calledwww.casinoscabs.ca – was reasonably necessary to inform or persuade the public, and whether it was reasonable to collect the personal information without consent for this purpose. In fact, the SCC expressly stated that its conclusion regarding the constitutionality of PIPA did not require it to condone all of the Union’s activities.
Thus the impact of this change is uncertain. Employers should review their privacy policies to ensure they are compliant with and properly applying the newly drafted PIPA as we wait for further clarity from the courts. In addition, it remains to be seen whether other provinces will amend their respective privacy statutes, most of which contain fairly broad language.