On October 25, 2012, the Supreme Court of Canada granted leave to appeal a decision of the Alberta Court of Appeal that narrowed the application of privacy laws in Alberta. In United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130, the Court of Appeal questioned the constitutionality of Alberta's Personal Information Protection Act (PIPA) and protections against the collection, use, and disclosure of personal information in the context of labour strike activities.
This case is expected to clarify the balance between competing needs for freedom of expression and privacy in Alberta and may have implications under similar private sector privacy laws across Canada.
During a strike at the Palace Casino in Edmonton, the respondent workers' union took videotape and still images of people crossing its picket line, and posted signs threatening to publish the images online, identifying such persons as scabs. Several individuals who were recorded filed complaints with the Alberta Information and Privacy Commissioner. At a hearing of the complaints, the adjudicator appointed by the Commissioner found that the Union had contravened the PIPA by collecting individuals' images for non-exempt purposes, without their consent.
Alberta Court of Appeal Decision
On appeal, the Alberta Court of Appeal focused on the main issue of whether a union has a constitutionally protected right to collect images of persons crossing its picket line, and if so, whether this right was unjustifiably infringed by application of the PIPA.
Relying on previous decisions of the Supreme Court of Canada, the Court of Appeal noted the important expressive element of labour picketing and held that the Union had the constitutional right to collect personal information to convey news about the labour dispute and to put social and economic pressures on the employer. Alberta's limitations on the collection, use, and disclosure of this information were, therefore, in violation of the Union's constitutional right to free expression under section 2(b) of the Charter of Rights and Freedoms.
The Court was then forced to decide whether this violation was justifiable in a free and democratic society, given the importance of individual privacy interests in our society. In this case, the Court of Appeal held that expectations of privacy in a public setting would not outweigh the importance of labour rights and free expression. In particular, the Court found that application of the PIPA was overbroad in five material respects:
It covers all personal information of any kind, and provides no functional definition of that term;
It contains no general exception for information that is personal, but not at all private;
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.
Rather than strike or read down the legislation to respect the right to free expression, the Court of Appeal declared that application of the PIPA to the Union's strike activities was unconstitutional, and quashed the decision of the adjudicator.
Implications – Looking Ahead
The Supreme Court of Canada granted leave earlier this week to hear an appeal of the Court of Appeal's decision brought by the Commissioner, without providing any reasons. While no hearing date has yet been set, guidance from the Supreme Court will be widely anticipated to provide greater certainty to application of the PIPA in Alberta, particularly to private sector labour activities. On a national scale, the Supreme Court's decision may be likely to also influence consideration of other similar provincial privacy legislation.
Eventually, Parliament and the Legislatures may be left to address the full impact of this case and balance the competing interests of freedom of expression and privacy protection. For the moment and until we hear from the Supreme Court of Canada to the contrary, however, the Court of Appeal's decision is likely to remain an important part of the jurisprudence in Alberta.