Union free expression rights trump privacy concerns: Alberta PIPA unconstitutional 

publication 

November 2013

Employment and Labour Bulletin

The emerging privacy rights of some Canadians may now be in a state of flux because of a recent decision by the Supreme Court of Canada (the "SCC"). As a result of the SCC's November 15, 2013 decision in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401 (2013 SCC 62) ("Alberta Privacy"), the Alberta Personal Information Protection Act ("PIPA") has been declared unconstitutional. Since other Canadian provinces (such as British Columbia, Quebec and more recently Manitoba) also have data protection laws similar to the Alberta PIPA that govern the collection, use and disclosure of employees' personal information, and given that at the federal level, the Personal Information Protection and Electronic Documents Act provides for a similar framework (although this federal law only applies to employees of federal works), this development may arguably require a review of privacy and data protection legislation across the country as it relates to the workplace.

The Alberta Privacy ruling arose in the context of a protracted labour relations dispute involving unionized employees of the Palace Casino in Edmonton. During a lawful strike that lasted 305 days, both the union and the employer videotaped and recorded individuals crossing the picket line. The union had posted signs in the area of the picketing stating that images of persons crossing the line might be placed on a website, www.casinoscabs.ca.

Several individuals who were recorded crossing the picket line filed complaints with the Alberta Information and Privacy Commissioner (the "Commissioner") alleging that their rights under PIPA had been violated. Specifically, the assertion was that PIPA contains express provisions which state that personal information cannot be collected, used or disclosed unless the individual to which the information pertains provides consent (subject to certain limited exceptions), and the union had never obtained consent. The Commissioner appointed an Adjudicator who concluded that the union's collection, use and disclosure of the information was not authorized by PIPA.

The union successfully applied for judicial review of the original decision. In overturning the Adjudicator's decision, the reviewing court held that PIPA's provisions violated the union's rights to freedom of expression as protection by the Canadian Charter of Rights and Freedoms (the "Charter"). The Alberta Court of Appeal agreed and granted the union a constitutional exemption from the application of PIPA.

The SCC's decision in Alberta Privacy substantially dismissed the Commissioner's appeal. The Court reasoned that the act of recording and distributing videos and photographs of picket line activities incorporates an expressive component because its purpose is to convey information about the labour dispute to a wider audience (in order to gain support for the union's cause) as well as put social and economic pressure on the employer (by intimidating non-sympathetic parties into suspending their relations with the employer). By preventing the union from recording and uploading the videos of employees crossing the picket line, the union's right to freedom of expression under the Charter had been violated by PIPA.

The SCC also held that the restrictions on expression imposed by PIPA, which were absolute in light of the consent requirement, were unjustifiable in a free and democratic society. The Court expressly acknowledged that the protection of personal information is both important and consistent with an international movement to provide individuals with better protection with respect to such information. However, the Court explained that individuals do not have the right to keep everything they do in a visible public space secret; holding people accountable for public activities – including crossing a picket line – is a component of the right to freedom of expression which unions and striking workers have.

The privacy concerns of individuals whose image had been recorded did not, said the SCC, outweigh the union's rights to use the material in an effort to achieve a favourable end to the labour dispute. In this regard, the SCC noted that the right to picket and otherwise express their views during a lawful strike is fundamental to union activity. Thus the privacy rights, though important, are no more important than the collective bargaining rights of workers and the communication rights of unions. On the facts of the particular case, the SCC appears to have been particularly concerned about the fact that, in all cases where an exemption was not available, PIPA's consent requirement was absolute and no balancing of interests was contemplated.

As a result of the Charter violation, the SCC declared the relevant provisions of PIPA to be unconstitutional. In accordance with a request of the Commissioner and the Attorney General of Alberta, PIPA was struck down in its entirety, with the declaration of invalidity suspended for 12 months. As a result, the Alberta legislature will now have the opportunity to decide how best to make the provisions of PIPA constitutionally compliant.

Some commentators have hailed the Alberta Privacy decision as a victory for the freedom of expression rights of unions and workers. While the outcome certainly will be empowering to some, the SCC's reasons also confirm in clear terms that privacy rights have a quasi-constitutional status. As a result of this Alberta Privacy decision, we would anticipate upcoming amendments to the Alberta PIPA, most likely aiming at striking a balance between privacy rights and freedom of expression as it relates to the workplace.

by Éloïse Gratton

A cautionary note


The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2013