On November 15, 2013, the Supreme Court of Canada issued its decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62. In a unanimous decision, the Court ruled that Alberta’s private sector privacy law, the Personal Information Protection Act (“PIPA”), breaches a union’s freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) in that it prevented them from recording and publishing pictures of individuals crossing a legal picket line. The Court further found that this breach was not justified under section 1 of the Charter.

Facts

During a lawful strike lasting 305 days, the union representing employees of the Palace Casino at the West Edmonton Mall set up a picket line near the casino’s entrance.

The union photographed and video-taped individuals crossing the picket line. These pictures were included in newsletters to the union’s members and posted on their website. The union also posted signs advising that anyone who crossed the picket line would have their images posted on a website called www.casinoscabs.ca. This deterred some members of the public from crossing the picket line. Pictures of the vice-president of the casino were displayed on a poster at the picket line with the text “This is [x’s] Police Mugshot.”

Several individuals who were recorded crossing the picket line during these events filed complaints with the Alberta Information and Privacy Commissioner asserting that the union had collected, used and disclosed personal information about them without their consent, thus contravening PIPA.

Prior Decisions

The Privacy Commissioner appointed an adjudicator to decide the matter. The adjudicator concluded that the images recorded were personal information and that collecting, using and disclosing those images was contrary to PIPA. However, the adjudicator lacked jurisdiction to consider the constitutional aspect of the dispute.

On judicial review, the union argued that the provisions of PIPA that prevent it from collecting, using and disclosing personal information obtained from a lawful picket line violate its freedom of expression protected by section 2(b) of the Charter. The chambers judge accepted the union’s argument and found that the infringement of section 2(b) could not be justified under section 1 of the Charter.

The Court of Appeal agreed and concluded that PIPA was overbroad. The Court of Appeal held that the privacy interest of the complainants was minor since they were in a public place, crossing a picket line and had notice that images were being collected.

Decision of the Supreme Court

The Supreme Court of Canada upheld the decision of the Alberta Court of Appeal, ruling that PIPA unjustifiably limits a union’s right to freedom of expression.

The Court emphasized the role of trade unions in advancing social, economic and political interests in our society and the importance of the picket line as an expressive and persuasive tool in a labour dispute. The Court further found that the UFCW’s purpose in recording the images of the persons crossing the picket line was to communicate with respect to its labour dispute and to try to persuade employees and members of the public not to cross the picket line, and

therefore that this was expressive activity on the Union’s part. Therefore, because PIPA would have limited the Union’s ability to do this, it infringed the Union’s freedom of expression.

The Court did not examine the expressive activity being engaged in by the persons crossing the picket line, or the impact of the Union’s actions and threatened actions in interfering with that expressive activity. Nor, despite acknowledging the importance of privacy protections in a democratic society, did the Court view the privacy interests at stake as being particularly significant. Rather, the Court’s view seemed to be that because the picket line was in a public place, anyone crossing it could reasonably expect to have their actions recorded and publicized in some fashion.

The Court found that the infringement of freedom of expression was not saved by s. 1 of the Charter, because the PIPA provisions were too broad and did not differentiate based on the nature of the personal information collected by the Union, the purpose for which it was collected or the use made of it by the Union – rather, the prohibitions effectively prohibited a union from collecting, using or disclosing any personal information about an individual to further the union’s collective bargaining objectives, without the individual’s consent or deemed consent. Because of this broad prohibition on the Union’s activities, the Court found it was not necessary to closely examine the precise expressive activities at issue or the degree to which individuals’ privacy interests were affected.

As a result, the Court struck down the entirety of Alberta’s Personal Information Protection Act, but suspended the declaration of invalidity for 12 months to give the legislature time to decide how best to make the legislation constitutional.

The Court did say that its “conclusion does not require that we condone all of the Union’s activities”. This may be a suggestion by the Court that the Union went too far in threatening to post individual’s pictures on the “scabs” website. The Court went on to say that “…like privacy, freedom of expression is not an absolute value and both the nature of the privacy interests implicated and the nature of the expression must be considered in striking an appropriate balance”. These comments by the Court do suggest that there could or should be a limit to the type of “pressure” that a union could place on employees or members of the public not to cross a picket line. However, the fact that the Court did not expressly take issue with any of the Union’s activities, or otherwise delineate any limitations on a union’s freedom of expression in this regard leaves the legislature (and future adjudicators) with little indication of where the line should be drawn.

Conclusion

The Court’s decision in this case has clear implications for British Columbia’s Personal Information Protection Act, which has virtually identical provisions to those which exist in Alberta, and for the private sector privacy legislation in Manitoba and Quebec. Therefore, these provinces will likely also need to amend their own legislation over the next year. There may also be implications for the federal government’s privacy legislation, PIPEDA.

Further, given the broad nature of the Court’s decision (striking down the whole of PIPA on the basis of a breach of freedom of expression, with very little direction or analysis of the context), this decision likely has broader implications for the privacy rights of individuals in Canada, particularly in public places. Legislatures will need to act carefully in delineating the circumstances and purposes for which organizations can collect, use and disclose personal information about individuals in Canada and the exceptions to the need for consent, so as to strike the right balance between freedom of expression and privacy interests. Organizations and employers, in turn, will need to tread carefully during the next year or so to ensure that they remain compliant with privacy legislation, despite that its scope and application is now somewhat uncertain following the Supreme Court’s decision in this case.