The Supreme Court of Canada unanimously concluded that Alberta’s Personal Information Protection Act (PIPA) is unconstitutional in its recent decision in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62. The Court’s declaration of PIPA’sinvalidity has been suspended for a period of 12 months to allow Alberta’s legislature time to decide how to make the legislation constitutional. The decision also impacts British Columbia’s Personal Information Protection Act.

Background

The underlying dispute arose from actions taken by the union representing employees at the Palace Casino at West Edmonton Mall during a lawful strike. During the strike action, the union videotaped and photographed individuals crossing its picket line near the main entrance to the casino. The union placed signs in the area stating that photos of individuals crossing the picket line might be placed on a website called www.casinoscabs.ca. The union’s purposes for videotaping and recording the picket lines included:

  • to inform the public and union members about the strike through pamphlets, newsletters and a website
  • to dissuade people from crossing the picket line and
  • to deter violence from non-picketers

A number of individuals (including a member of the Casino’s management, a patron of the Casino and an employee of a business near the entrance of the Casino) who were recorded by the union complained to the Alberta Information and Privacy Commissioner under PIPA, which establishes a general rule that organizations cannot collect, use or disclose personal information without consent.

PIPA includes a number of exemptions from this rule, for example where the collection, use or disclosure of personal information is reasonable for the purposes of an investigation or legal proceeding, or is for journalistic purposes. However, as found by the Adjudicator appointed by the Information and Privacy Commissioner (which finding was accepted by the Supreme Court of Canada), none of PIPA’s exemptions applied to permit the union’s collection, use or disclosure of personal information for the purpose of advancing its interests in the labour dispute.

The Adjudicator decided that the union’s collection, use and disclosure of personal information by recording the individuals crossing the picket line were not permitted by PIPA. The Adjudicator ordered the union to stop collecting the information for any purpose except for a possible investigation or legal proceeding. On judicial review, the Alberta Queen’s Bench held that, in the context, PIPA’s prohibition on the collection, use, and disclosure of such personal information infringed the union’s right to freedom of expression. On appeal, the Court of Appeal concluded that PIPA was overbroad and it breached the union’s right to freedom of expression.

Supreme Court of Canada decision

At the Supreme Court of Canada there was no issue with the fact that the union collected personal information by recording individuals at the picket line. Further, the recording and potential use or distribution of the recordings was an “expressive” activity done for the purpose of persuading individuals to support the union and deterring them from crossing the picket line.

Because PIPA does not include an exemption which would permit a union to collect, use and disclose personal information for the purpose of advancing its interests in a labour dispute, the Court had no difficulty concluding that PIPA restricts freedom of expression.

Next, in determining whether the effect of PIPA was a justifiable infringement on freedom of expression, the Court recognized that PIPA’s provisions are rationally connected to the pressing and substantial objective of providing individuals with some measure of control over their personal information, which relates to their individual autonomy, dignity, and privacy. However, PIPA’s restrictions on freedom of expression ultimately could not be justified because the effects of the restrictions are disproportionate to the benefits the legislation seeks to promote.

The Court noted that PIPA’s restrictions on the collection, use and disclosure of personal information are without regard for the nature of the personal information, the purpose for which it is collected, used, or disclosed, and the situational context for that information. There is no way to accommodate the expressive purposes of unions engaged in lawful strikes, and there is no way to balance a union’s constitutional right to freedom of expression with the privacy interests protected. The Court noted thatPIPA effectively deems virtually all personal information to be protected regardless of context. Accordingly, the Court concluded that PIPA’s restrictions on the collection, use or disclosure of personal information infringe on many legitimate, expressive purposes related to labour relations.

In considering whether the effects of the restrictions are proportional to the legislation’s objective of privacy protection, the Court highlighted the importance of free expression as a fundamental aspect of labour disputes. First, freedom of expression is directly related to the Charter-protected right of workers to associate to further common workplace goals. Second, employment and workplace conditions inform an individual’s identity, emotional health, and sense of self-worth. Third, free expression in the labour context can reduce the power imbalance between the employer and vulnerable worker. Finally, it plays an important role in publicizing issues relating to labour conditions. Moreover, the Court recognized picketing as a crucial form of expression, the effectiveness of which depends on the ability of the union to convince the public not to cross the picket line.

In view of all this, the Court concluded that PIPA’s restrictions on the freedom of expression could not be justified, and therefore PIPA is unconstitutional. The Information and Privacy Commissioner of Alberta and the Attorney General of Alberta had requested that in the event they were not successful in this case, the Court strike down PIPA in its entirety, rather than certain provisions. Accordingly, the Court declared PIPA to be invalid, but suspended the declaration for a period of 12 months to allow the legislature time to decide how to make it constitutional.

British Columbia’s Personal Information Protection Act is substantially similar to Alberta’s PIPA, given that BC and Alberta worked together in drafting the legislation; however, at this time the Supreme Court of Canada’s decision is only directly applicable to Alberta’s PIPA. Nonetheless, in light of the decision it is reasonable to expect that BC may consider the amendment or replacement of its own PIPA. The BC Information and Privacy Commissioner released a statement following the decision noting the similarity between BC’s and Alberta’s PIPAs, and indicating that she looks forward to discussions with the BC government on how to balance privacy protections with freedom of expression related to union activity.