The Alberta government moved forward last week with amendments to the Personal Information Protection Act (PIPA). The proposed amendments seek to respond to constitutional deficiencies in the legislation identified in the November 15, 2013 ruling of the Supreme Court of Canada (SCC) in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401. For more information see our November 2013 Blakes Bulletin: Picketing Trumps Privacy: SCC Declares Alberta Privacy Legislation Unconstitutional.
In this decision, the SCC struck down PIPA in its entirety on the basis that it infringed the right to freedom of expression of the United Food and Commercial Workers, Local 401 (Union) by restricting the Union's collection, use and disclosure of personal information for legitimate labour relations purposes. The SCC issued a suspended declaration of invalidity for a period of 12 months to give the Alberta government the opportunity to amend PIPA. This deadline was recently extended by the SCC on October 30, 2014 to provide the Alberta government with an additional six months to legislate in response to the SCC's ruling.
BILL 3: PERSONAL INFORMATION PROTECTION AMENDMENT ACT
The proposed amendments, found in Bill 3, the Personal Information Protection Amendment Act and described in detail below, specifically address collection, use and disclosure of personal information by a trade union in connection with a labour dispute. Bill 3 passed first reading in the Alberta legislature on November 18, 2014, and has also been endorsed by the Information and Privacy Commissioner of Alberta in a November 20, 2014 press release. In general, the proposed amendments to PIPA are in line with commentary from the Alberta government and industry expectations that changes to PIPA will be limited in scope to unions and labour relations activity.
Bill 3 allows for collection, use and disclosure of personal information by a trade union, without the consent of the individual to whom the personal information pertains, where all of the following conditions are met:
- The collection, use or disclosure of personal information is for the purpose of informing or persuading the public about a matter of significant public interest or importance relating to a labour relations dispute involving the trade union
- The collection, use or disclosure is reasonably necessary for that purpose
- It is reasonable to collect, use or disclose the personal information without consent for that purpose, taking into consideration all relevant circumstances, including the nature and sensitivity of the information.
A trade union's ability to collect, use or disclose personal information without consent in these circumstances is subject to forthcoming regulations. The Information and Privacy Commissioner of Alberta has indicated that she hopes to be consulted on any proposed regulations to address potential implications for privacy and access.
As noted above, the proposed amendments to PIPA align with past government commentary and industry expectations as to the nature and scope of the intended changes. The intrigue lies in the balance that is struck between recognizing the importance of expressive activity in the labour relations context—which is limited by the concept of "significant public interest or importance"—and protecting privacy, including specific consideration of the nature and sensitivity of the personal information at issue.
Assuming that Bill 3 becomes law, trade unions and management personnel will want to pay particular attention to the interpretation and application of these principles in the context of future labour disputes. In addition, all readers will want to keep in mind that broader changes to PIPA may be ahead given that PIPA requires a comprehensive review of its provisions starting no later than July 1, 2015.