The Supreme Court of Canada (SCC) released its long-awaited ruling in Information and Privacy Commissioner, et al. v. United Food and Commercial Workers, Local 401 on November 15, 2013. The SCC unanimously held that Alberta’s Personal Information Protection Act (PIPA) unconstitutionally infringed the Union’s right to freedom of expression as it prohibited the Union from using collected images on strike-related material without consent, which the Court found was expressive activity, and that such infringement was not justified under section 1 of the Charter.
Facts of the Case: United Food and Commercial Workers, Local 401 (the Union) represented workers at the Palace Casino in Edmonton. The Union videotaped its picket line during a strike in 2006 and posted signs in the surrounding area stating that images of persons crossing the picket line might be placed on a website. While images were never placed on a website, the Union used collected images for other purposes, including using the image of a management employee on satirical posters and in leaflets. Complaints were filed with the Privacy Commissioner of Alberta, whose adjudicator held that the Union had violated PIPA. On judicial review and appeal, both the Alberta Court of Queen’s Bench and the Alberta Court of Appeal held that PIPA, as applied to the adjudicator’s order, unconstitutionally infringed the Union’s Charter-protected right to freedom of expression.
This decision confirms that, after a decade of legislative and judicial trends emphasizing the privacy rights of individuals, such rights, while fundamentally important, are not absolute and will have limits.
While the SCC declared PIPA invalid in its entirety because it restricted the Union’s collection, use and disclosure of personal information for legitimate labour relations purposes, it suspended that declaration for 12 months to grant the Alberta Legislature an opportunity to revise PIPA. Both the Appellant Attorney General of Alberta and Privacy Commissioner of Alberta requested this general declaration of invalidity, indicating that the Alberta Legislature may consider using this opportunity to generally reform PIPA.
There is clearly now a precedent for future Charter challenges to Canada’s other private-sector privacy legislation, including British Columbia’s Personal Information Protection Act (BC PIPA) which was drafted in tandem with PIPA, Manitoba’s recently passed The Personal Information Protection and Identity Theft Protection Act, and the federal Personal Information Protection and Electronic Documents Act (PIPEDA), upon which PIPA is closely modelled. Whether other lawmakers will take the opportunity to reform their respective privacy legislation in light of this decision is yet to be seen.