Supreme Court of Canada Upholds Union’s Right to Freedom of Expression

by Field Law

As noted in our latest Privacy Press update, recently the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, determined that Alberta’s Personal Information Protection Act (the “PIPA”) unjustifiably limits a union’s right to freedom of expression in the context of a lawful strike.

The Supreme Court struck down the PIPA legislation in its entirety, albeit with a year reprieve to allow Alberta to adapt the legislation. In addition to the privacy issues and impacts identified in Field Law’s previous update, it is important to also be aware of the importance of the decision and its reasoning relating to the rights of unions and employers. The Supreme Court sent a clear message to lawmakers across the country that a union’s right to freedom of expression in the context of a lawful strike, although not absolute, must be preserved when enacting laws seeking to provide individuals control over their personal information.

The case arose in 2006 when the United Food and Commercial Workers, Local 401 (the “Union”) representing employees at a Casino in Edmonton began recording and photographing individuals crossing the picket line in the midst of a 305 day labour dispute. Signs posted by the Union where the picketing occurred stated that photographed and video images of individuals crossing the picket line might be posted on the internet. Although no images were published online, several individuals whose images were recorded or photographed by the Union filed complaints with the Alberta Information and Privacy Commissioner under PIPA. The employer’s Vice President also filed a complaint after images of him were used on a poster at the picket line and in Union leaflets and newsletters, accompanied with captions intended to be humorous.

An adjudicator appointed by the Commissioner decided that by collecting, using and disclosing personal information about individuals without their consent, the Union had contravened PIPA. In deciding this, the adjudicator rejected the Union’s argument that the information collected and used by the Union was covered by the “journalistic purposes” exemption in PIPA. The Union applied to the Court of Queen’s Bench for judicial review of the adjudicator’s decision arguing that by preventing the Union from collecting, using and disclosing personal information obtained from its lawful picketline, PIPA violated its Charter protected freedom of expression and that such a violation could not be justified. The Court of Queen’s Bench found (and the Court of Appeal of Alberta agreed) that there was a violation of the Union’s Charter protected freedom of expression that could not be justified.

In a unanimous decision, the Supreme Court of Canada also concluded that PIPA violated the Union’s Charter protected freedom of expression by restricting the Union’s ability to collect, use or disclose personal information during the course of a lawful strike, and that such an infringement could not be justified in a free and democratic society. In its reasons, the Court began by concluding without difficulty that PIPA restricted the Union’s freedom of expression. The Court then moved on to determine if the violation could be justified. Although the Court found that PIPA served a pressing and substantial objective in providing individuals some measure of control over their personal information, the Court concluded that the limits imposed by PIPA were disproportionate to the benefits it promoted.

In its analysis, the Court stressed the importance of freedom of expression in labour disputes. Notably, the Court explained that:

  • expressive activity in the labour context is directly related to the Charter protected right of workers to associate to further common workplace goals under s. 2(d) of the Charter;
  • a person’s employment and the conditions of their workplace can inform their identity, emotional health, and sense of self-worth;
  • it is through their expressive activities that unions are able to articulate and promote their common interests, and, in the event of a labour dispute, to attempt to persuade the employer;
  • in the labour context, freedom of expression can enhance broader societal interests;
  • the free flow of expression by unions and their members during a labour dispute plays an important role in bringing issues relating to labour conditions into the public arena for discussion and debate; and
  • picketing is a form of expression that has strong historical roots, as strikes and picketlines have been used by Canadian unions to exert economic pressure and bargain with employers for over a century.

Accordingly, the Court concluded that by imposing restrictions on the Union’s ability to communicate and persuade the public of its cause, PIPA impaired the Union of its ability to use one of its most effective bargaining strategies in the course of a lawful strike. This infringement of the Union’s right to freedom of expression was found to be disproportionate to the government’s objective of providing individuals with control over personal information that they expose by crossing a picketline. To the extent that PIPA restricted the Union’s collection, use and disclosure of personal information for legitimate labour relations purposes, the legislation violated the Union’s freedom of expression, and could not be justified. The Court noted, however, that its conclusion would not condone all of a union’s activities. Just like privacy, freedom of expression is not an absolute value and the nature of the interests concerned must be considered in striking an appropriate balance.

For these reasons and given the comprehensive and integrated structure of the statute, the Supreme Court of Canada ordered that PIPA should be struck down in its entirety. However, it is worth noting that the Court suspended the declaration of invalidity for a period of one year to give the Alberta legislature time to render PIPA constitutional or to adopt a new law.

This is a very important decision for unions and employers for obvious reasons. It is also significant for any party dealing with a PIPA complaint, and advice should be sought as to whether and how this decision affects you. Field Law’s Labour and Employment and Privacy Practice Groups are here to assist you and your organization with all strategic and practical matters arising from these issues.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Field Law | Attorney Advertising

Written by:

Field Law

Field Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.