Recent years have witnessed a massive increase in the ready availability of personal information, particularly in digital form, and a concomitant rise in the amount of information on customers and consumers available to businesses. Canadian policy-makers, in response, have instituted extensive protections for consumer privacy rights, in the form of privacy enactments governing the collection, use and disclosure of personal information by private-sector entities. These statutes impose an array of obligations on Canadian businesses, many of whom expend significant resources developing and implementing strategies for complying with these statutes.

A recent decision of the Supreme Court of Canada, Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 [“United Food”], has called into question the constitutionality of much of this burgeoning private-sector privacy regime.

At issue in United Food were provisions of the Alberta Personal Information Protection Act (PIPA) prohibiting the non-consensual collection, use, and disclosure of an individual’s personal information. The case involved a lengthy labour relations dispute between unionized employees represented by United Food and Commercial, Local 401 (the “Union”), and the Palace Casino in Edmonton. In the course of a lawful strike organized by the Union, a number of employees crossed the picket line. Some employees crossing the picket line were recorded by Union members, and the Union posted signs threatening to publish images and videos of the employees on a Union-run website.

Several employees recorded in this manner complained to the Alberta Privacy Commissioner, claiming that their privacy rights had been violated. The Privacy Commissioner’s adjudicator agreed with the complainants, finding that the Union’s actions violated PIPA provisions prohibiting the collection and disclosure of the employees’ personal information. On judicial review, Goss J. of the Alberta Court of Queen’s Bench set aside the Commissioner’s decision, finding that PIPA violated the Union’s Charter-protected right to freedom of expression. The Alberta Court of Appeal upheld the lower court’s decision.

On appeal to the Supreme Court, Justices Abella and Cromwell wrote for a unanimous Court in dismissing the Privacy Commissioner’s appeal. The Court decided that the Union’s collection and threatened distribution of photographs and videos of employees crossing the picket line was intended to inform the public about the ongoing dispute and was thus expressive in nature. In finding PIPA’s prohibition against the collection, use, and disclosure of personal information unconstitutional — to the extent that it interfered with the Union’s right to freedom of expression — the Court emphasized at length the historical importance of the right of unions to free expression. Although the Court also recognized the importance of personal privacy in Canadian law, it found that PIPA was not a justifiable limitation on the Union’s right to free expression. At the request of the Privacy Commissioner and Alberta’s Attorney General, the Court declared the entirety of PIPA unconstitutional, suspending the declaration for 12 months to give Alberta time to remedy the legislation.

The United Food decision will likely have widespread effects. Privacy laws similar to PIPA exist in British Columbia, Manitoba and Québec. In the other provinces, the Federal Personal Information Protection and Electronic Documents Act (PIPEDA) similarly prohibits the non-consensual collection, use and disclosure of personal information by private organizations, provided the information is collected, used and/or disclosed for a commercial purpose. PIPEDA does not provide exceptions for expressive conduct or labour relations, and may need to be amended as well.

Possible legislative amendments in response to the United Food decision range from a narrow exemption for “labour relations and no other purpose” (mirroring existing exemptions for e.g., news reporting) to provisions providing for a balancing of the interests where the impugned conduct is expressive in nature. The affected legislatures now face the difficult task of re-balancing personal privacy interests with freedom of expression (in the context of labour relations and otherwise), while remaining mindful of the appropriate roles of Privacy Commissioners and the courts in making such distinctions. In the interim, this decision brings into question the scope of private-sector privacy laws in Canada when freedom of expression is put in jeopardy, in at least the labour relations context and possibly in other contexts as well. The coming year will certainly prove very interesting for Canadians and private-sector businesses alike as the legislative response to this decision unfolds.