Whether the Alberta PIPA is constitutional continues to be an ongoing issue to be examined in the Courts. As I wrote in this Blog on June 6, 2012, in a post entitled Is Alberta’s PIPA Constitutional?, in a recent ruling of the Alberta Court of Appeal in United Food and Commercial Workers, Local 401 v. Alberta (Attorney General) 2012 ABCA 130 (“UFCW”)the Court concluded that the Personal Information Protection Act (Alberta) (“PIPA”) had not been drafted in a manner that is “adequately sensitive to protect Charter Rights”. The Alberta Privacy Commissioner sought leave to appeal the decision to the Supreme Court of Canada. Leave was granted and the case was heard June 11th .
Prior to the UFCW case beginning to wend its way through the courts, in April, 2008 a judicial review was requested by the Alberta Teachers’ Association (“ATA”) of a decision of the Alberta (Information and Privacy Commissioner) which found that the ATA had breached s.7 of the PIPA, the prohibition of disclosure without authorization or consent and s. 19 of PIPA, which permits disclosure for reasonable purposes, related to the publication of information in a newsletter. In that review the ATA articulated a number of arguments, including that S. 43 of the PIPA should be broadly interpreted so as to authorize its publication in light of the guarantee of free expression in the Canadian Charter of Rights and Freedoms.
The Court did not deal with the Charter issue, deciding the application on the sole ground that the Privacy Commissioner did not hold their inquiry within the timelines set out in PIPA. The decision was upheld by the Alberta Court of Appeal and then overturned by the Supreme Court of Canada in December 2011. Both parties to the action agreed during their submissions to the Supreme Court that the matter should be remitted to the chambers judge to consider the issues not dealt with in the initial judicial review and the Supreme Court agreed.
In August 2012 ATA filed an Amended Originating Application for judicial review wherein it sought a declaration that certain provisions of PIPA and the PIPA Regulations are unconstitutional, and that the decision of the Privacy Commissioner in the initial inquiry was also unconstitutional. The Court, on February 15, 2013, found in favour of the ATA and allowed the amendments, opening the door for a judicial review examining the specific question of constitutionality of the PIPA.
It is indeed an interesting time in Alberta as we wait for the Court in Alberta and the Supreme Court of Canada to rule on the constitutionality of the PIPA.