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On November 11th, 2013, the Supreme Court of Canada (“SCC”) released an interesting decision favouring a union’s freedom of expression over an individual’s right to privacy in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62.

The dispute arose during a lawful strike at the Palace Casino in Edmonton when the union videotaped and photographed the picket line. Warning signs were placed nearby stating that images and recordings were being made and might be posted to a website called CasinoScabs.

Although no images or recordings of the complainants were in fact posted to the named website, individuals crossing the picket line filed complaints under Alberta’s Personal Information Protection Act (“PIPA”) alleging improper collection, use and disclosure of their personal information.

Subject to limited exceptions, PIPA requires organizations to obtain consent prior to the collection, use or disclosure of personal information. The complainants argued that no consent was obtained before the union took photographs and video recordings of individuals crossing the picket line, thus violating PIPA. The union argued its conduct was for legitimate labour relations purposes (including informing union members and the public about the strike and dissuading individuals from crossing the picket line) and that the activities fell within the constitutionally protected guarantee of freedom of expression under the Canadian Charter of Rights and Freedoms (“Charter”).

The SCC found the union’s activities were indeed constitutionally protected and that PIPA violated the Charter because it failed to appropriately limit the restrictions on the communication of important labour relations information. PIPA was inflexible and prohibited the collection, use and disclosure of personal information for many legitimate purposes, including those related to labour relations. PIPA restricted a union’s ability to communicate, to persuade the public and to use one of its most effective bargaining tools (i.e. picketing). On balance, “the price PIPA exacts is disproportionate to the benefits it promotes.”

The SCC declared PIPA to be unconstitutional and invalid, but suspended their declaration for 12 months to provide the Alberta legislature with time to revise and adopt compliant privacy legislation.

While this decision applies specifically to Alberta’s privacy legislation, similar legislation does exist in other provinces.  For example, British Columbia’s Personal Information Protection Act is almost identical to Alberta’s.  The constitutionality of privacy legislation in those provinces is now in question, and the legislatures are working to introduce amendments that will ensure Charter rights are not infringed.

Employers should continue to carefully apply their privacy policies during this period of uncertainty.

Many thanks to Chanel Sterie for her assistance in drafting this blog.
See our previous blogs posts on Jones v Tsige, Alberta v AUPE, and R v. Cole for further discussion of privacy issues.