Member Article

On November 15, 2013, the Supreme Court of Canada declared Alberta’s Personal Information Protection Act (PIPA)¹ constitutionally invalid on the ground that it disproportionately infringed a union’s right to freedom of expression, in this case, the United Food and Commercial Workers, Local 401 (the “Union”).² This case is of particular importance because it raises the issue of Canadian legislatures’ ability to establish a constitutionally acceptable balance between the protection of personal information and a union’s freedom of expression.

THE BACKGROUND
The events giving rise to the case occurred in 2006, during a lawful strike by the employees of the Palace Casino at the West Edmonton Mall (the “Employer”) that lasted 305 days. During the course of this lengthy labour dispute, both the Union and a security company hired by the Employer videotaped and photographed the picket line. Signs placed in the picketing area stated the Union’s intention to publish images on the Internet of individuals crossing the picket line. While no images were posted on the Internet, the Union nevertheless used certain photographs to prepare pamphlets, newsletters and posters.

Several individuals who had been videotaped or photographed crossing the picket line filed complaints to the Alberta Information and Privacy Commissioner under PIPA. The adjudicator, who was appointed by the Commissioner to decide on the complaints ruled that no provision of PIPA authorized the Union to collect, use or disclose personal information for the purpose of advancing its interests. Consequently, she ordered the Union to stop collecting the personal information without the consent of the individuals in question and to destroy any material in its possession that contravened PIPA. It should be noted that, under Alberta law, the adjudicator did not have jurisdiction to rule on the constitutionality of PIPA.

Following the judicial review of the adjudicator’s decision, the judge of the Alberta Court of Queen’s Bench accepted the Union’s arguments and ruled that PIPA unreasonably infringed the Union’s freedom of expression as guaranteed under s. 2(b) of the Canadian Charter.³ On appeal from this judgment, the Court of Appeal agreed with the Court of Queen’s Bench and ruled that the infringement of a union’s freedom of expression is not justifiable in a free and democratic society.⁴ It therefore granted the Union a constitutional exemption from the application of PIPA.

THE DECISION OF THE SUPREME COURT OF CANADA
In a unanimous judgment written by Justices Abella and Cromwell, the Supreme Court agreed with the Court of Appeal. It stated that videotaping and photographing persons crossing a picket line – as well as possibly using or distributing these images – were expressive activities carried out for legitimate purposes, in this case, to deter people from crossing the picket line and to inform the public about the strike.⁵ It also noted that those crossing the picket line could reasonably expect to be videotaped or photographed and have their image disseminated. The Supreme Court emphasized that, in the case at bar, the personal information collected, used or disclosed by the Union did not contain any intimate details about the lifestyle or personal choices of the individuals in question.⁶