Today, the Supreme Court of Canada granted leave to appeal from a decision of the Alberta Court of Appeal declaring the application of Alberta’s Personal Information Protection Act to certain union activities during a strike to be unconstitutional. This case may prove to be pivotal for the interpretation and constitutional validity of private sector privacy laws in Canada.

The case, now titled Information and Privacy Commissioner v. United Food and Commercial Workers, Local 401, involves a union videotaping people crossing a picket line.  The union had also threatened to post the images to an Internet website.  One of the images was used for posters, leaflets and a newsletter. If PIPA applied, the union would need to find an exception to the collection and use of that personal information without reasonable consent.

The union’s initial argument before the Alberta Court of Appeal was that its collection and use of the personal information (the images of people crossing the picket line) was exempt from the requirement for reasonable consent by virtue of the exception for journalistic purposes.

The Court of Appeal concluded that the union’s activities did not fall within the exemption for journalism. However, the court went on to assess whether PIPA unreasonably restricted the union’s right  to freedom of thought, belief, opinion and expression under section 2(b) of Canada’s Charter of Rights and Freedoms

The court accepted that the union was engaged in expressive activities in support of labour relations and collective bargaining activities by the union in mid strike. PIPA restricted that right if there were no exemption available.  So, the question for the court was whether the restrictions imposed by PIPA were justifiable in a free and democratic society. In other words, were the restrictions proportional to the harm being regulated by PIPA (the harm being the potential misuse of personal information and the interest of protecting reasonable expectations of privacy)?

The court concluded that the restrictions were overbroad. In particular, the court identified the following concerns (at para. 77):

  • [The Act] covers all personal information of any kind, and provides no functional definition of that term. (The definition of “personal information” as “information about an identifiable individual” is essentially circular.) The Commissioner has not to date narrowed the definition in his interpretation of the Act in order to make it compliant with Charter values.
  • The Act contains no general exception for information that is personal, but not at all private. For example, the comparative statutes in some provinces exempt activity that occurs in some public places.
  • The definition of “publicly available information” is artificially narrow.
  • There is no general exemption for information collected and used for free expression.
  • There is no exemption allowing organizations to reasonably use personal information that is reasonably required in the legitimate operation of their businesses.

The court did not strike down any particular portion of the statute because there was “no obvious way to prune this statute so as to make it constitutional”. Instead, the court declared that the application of PIPA to the union’s activities was unconstitutional.

The Supreme Court of Canada has now granted leave. It is expected that there will be a number of parties seeking leave to intervene in the appeal.