Privacy Advisor

CANADA—Canada’s Top Court Rules In Favour of a Union and Declares Alberta’s Privacy Law Unconstitutional

January 23, 2014

By John Jager, CIPP/US, CIPP/C, CIPP/G

On November 15, 2013, the Supreme Court of Canada issued a decision—Alberta Information and Privacy Commissioner v. United Food and Commercial Workers, Local 401, 2013 SCC 62in which it declared Alberta’s privacy law, the Personal Information Protection Act (PIPA) unconstitutional. However, it suspended its declaration of invalidity for 12 months to give Alberta’s legislature time to make the law constitutional.

History of the Case

A labour union, which was on strike against a casino located with the West Edmonton Mall, had videotaped and photographed activity on the picket line. A number of individuals complained to Alberta’s Office of the Information and Privacy Commissioner (OIPC) that their personal information (PI) had been collected, used and/or disclosed without their consent. The OIPC examined the union’s activity against the requirements of PIPA and found that the union had contravened PIPA by processing the complainants’ PI without consent and ordered it to stop collecting and destroy any PI in its possession.

On judicial review, the union successfully argued that PIPA prevented it from exercising its rights to freedom of speech under the Canadian Charter of Rights and Freedoms. The court found that the union’s activity had expressive content and that there was no reason to exclude it from the protection of s. 2(b) of the charter and that PIPA limited the union’s freedom of expression. It concluded that this breach could not be justified under s.1 of the charter.

The Alberta Court of Appeal was of the view that the real issue was whether it was justifiable to restrain expression in support of labour relations and collective bargaining activities. It concluded that PIPA was overbroad and granted the union a constitutional exemption, considering that the privacy interest at stake was minor—since the complainants were in a public place, crossing a picket line and had notice that images were being collected—and the right of workers to engage in collective bargaining and of the union to communicate with the public.

Supreme Court Decision

In its decision, the Supreme Court noted that while PIPA is rationally connected to a pressing and substantial objective, its broad limitations on freedom of expression are not demonstrably justified because its limitations on expression are disproportionate to the benefits the legislation seeks to promote. The court found that, as noted by the adjudicator, PIPA does not provide any way to accommodate the expressive purposes of unions engaged in lawful strikes and it does not include any mechanisms by which a union’s constitutional right to freedom of expression may be balanced with the interests protected by the legislation. The court also noted that many legitimate, expressive purposes related to labour relations—such as ensuring the safety of union members, attempting to persuade the public not to do business with an employer and bringing debate on the labour conditions with an employer into the public realm—are objectives at the core of protected expressive activity under s.2(b) of the charter and that the court has long recognized the fundamental importance of freedom of expression in the context of labour disputes.

In reaching its decision to find PIPA unconstitutional, it noted that “both the Information and Privacy Commissioner of Alberta and the Attorney General of Alberta stated in oral argument that if they were unsuccessful, they would prefer that PIPA be struck down in its entirety.”

Response of the OIPC

On December 20, 2013, the OIPC wrote to Alberta’s minister of justice and solicitor general recommending that the legislative response that would most directly address the constitutional problem identified by the court would be to “add authorizing provisions allowing the collection, use or disclosure of PI by unions for expressive purposes without consent, in the context of picketing during a lawful strike.” As noted by the OIPC, PIPA already contains provisions authorizing the collection, use and disclosure of PI for the purposes of complying with a collective agreement, so such an amendment is not without precedent. The OIPC recognized that there are other amending options—such as exemption unions from PIPA or adding union expression in the course of labour relations activities; however, it does not feel such amendments would properly meet the balancing of interests as required by the court.

Considerations for Organizations Subject to PIPA

First, organizations need to be aware that there is a 12-month suspension of the court’s decision, so PIPA remains in effect. Even if PIPA had been struck down immediately, the federal privacy law, PIPEDA, would have effect in Alberta, as PIPEDA applies in all provinces in Canada that do not have substantially similar legislation. Secondly, the court’s decision deals with a very specific set of facts relating to expressive purposes of a union and most organizations are not covered by the charter’s right to freedom of expression.

John Jager, CIPP/US, CIPP/C, CIPP/G, is vice president of research services at Nymity, Inc., which offers web-based privacy support to help organizations control their privacy risk. He may be reached at john.jager@nymity.com.