The Alberta Court of Appeal has upheld a decision from Court of Queen’s Bench finding that the Alberta Personal Information Protection Act (“PIPA”) was unconstitutional in its application to the activities of a union . In doing so, the Court affirmed that privacy legislation is subordinate to Charter values such as freedom of expression and freedom of association. In United Food and Commercial Workers, Local 401 v Alberta (Attorney General), the union had challenged a decision from an adjudicator for the Alberta Information and Privacy Commissioner that the union did not have the right under PIPA to collect images of persons crossing a picket line and use those images for collective bargaining purposes without the consent of the individuals recorded. The Court of Queen’s Bench found that the application of PIPA to the union’s activities interfered with the union’s Charter right to freedom of expression and not only quashed the adjudicator’s order but also declared certain provisions of PIPA invalid. The Court of Appeal agreed that the adjudicator’s interpretation of PIPA and the order she made interfered with the union’s Charter rights but modified the remedy to a delcaration that the application of PIPA to the union’s activities was unconstitutional. The Court of Appeal left the consideration of how PIPA should be amended to bring it in line with the Charter to the Alberta legislature.

In making the original order, the adjudicator rejected arguments from the union that its collection and use of the images was for a journalistic purpose and therefore PIPA did not apply. The adjudicator found that the union could not rely on the exclusion for “journalistic purposes and no other purpose” because it was also using the images for other non-exempt purposes. The Court of Queen’s Bench found that PIPA could be made more constitutionally compliant by adopting an extremely broad definition of journalism to include the traditional communication and educational activities of the union. The Court of Appeal rejected this approach and stated that the constitutional protection of the union’s freedom of expression in PIPA should be analyzed directly and not “indirectly through an artificial screen of journalistic purposes.”

The Court concluded that the adjudicator’s order prohibiting the collection and use of images of persons at a picket line had a direct impact on the union’s right to free expression which was not demonstrably justified under the Charter. The Court found that PIPA was overly broad in its scope, in particular in its expansive and circular definition of personal information, the lack of an exception for personal information that is not private, the artificially narrow definition of “publicly available information”, the lack of an exception for information collected and used for free expression, and the lack of an exception for an organization to use personal information that is reasonably required in the legitimate operation of its business. The Attorney General, in defending PIPA, failed to demonstrate to the Court’s satisfaction why this “heavy handed approach to privacy is necessary, given the impact it has on expressive rights”.

This case appears destined for the Supreme Court of Canada given its potential impact on the constitutional validity of federal and provincial private sector privacy legislation.