In a decision released Friday November 15, 2013, the Supreme Court of Canada declared that Alberta’s Personal Information Protection Act (PIPA) is unenforceable, on account of the statute’s failure to protect the freedom of expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms. The Court has given the Alberta legislature twelve (12) months to revise the statute before it is declared invalid.

The case, Information and Privacy Commissioner of Alberta v. United Food and Commercial Workers, Local 401 (2013 SCC 62), arose out of a labour dispute, and the lawful strike activities of union employees at the Palace Casino at West Edmonton Mall in Alberta in 2006. During the strike, both the Union and the employer were video-taping and photographing the picket-line near the main entrance to the Casino. The Union had posted signs in the area of the picketing stating that images of persons crossing the picket-line might be placed on a website called www.casinoscabs.ca.

Several individuals who were recorded crossing the picket-line complained to the Alberta Information and Privacy Commissioner, asserting that the activities of the Union and the employer violated PIPA, inasmuch as the individuals had not consented to the collection, use or disclosure of their personal information (as required by PIPA), and that the conduct of the Union and the employer was not caught by any of the statutory exceptions to the consent requirement. In its decision, the Alberta Information and Privacy Commissioner determined that the conduct of the Union and the employer violated the statutory rights of the individuals, as guaranteed by PIPA.

On the basis of that decision, the Union challenged PIPA in its entirety. It argued that the absence of an exception which permitted the Union to collect, use and disclose personal information obtained from its lawful picket-line infringed its rights under section 2(b) of the Charter and, in particular, the expressive activity associated with collective bargaining and labour relations.

Significantly, all levels of Court – the Alberta Court of Queen’s Bench, the Alberta Court of Appeal, and the Supreme Court of Canada – agreed with the Union, finding that PIPA unduly interfered with the Union’s Charter rights. While the Supreme Court recognized that “the objective of providing an individual with some measure of control over his or her personal information [as PIPA does] is intimately connected to individual autonomy, dignity and privacy, self-evidently social values”, the Court concluded that:

“the price PIPA exacts, however, is disproportionate to the benefits it promotes. PIPA limits the collection, use and disclosure of personal information other than with consent without regard for the nature of the personal information, the purpose for which it is collected, used or disclosed, and the situational context for that information.”

In support of that conclusion, the Supreme Court observed that:

“the personal information was collected by the Union at an open political demonstration where it was readily and publicly observable. Those crossing the picketline would reasonably expect that their image could be caught and disseminated by others such as journalists, for example. Moreover, the personal information collected, used and disclosed by the Union was limited to images of individuals crossing a picketline and did not include intimate biographical details. No intimate details of the lifestyle or personal choices of the individuals were revealed.”

As PIPA’s restrictions could not be justified in the circumstances, the Supreme Court declared PIPA “to be invalid but suspended the declaration of invalidity for a period of 12 months to give the legislature time to decide how best to make the legislation constitutional.”

Implications for Alberta employers

While it is rare to see the Supreme Court strike down legislation on constitutional grounds, the immediate implications of this decision for Alberta employers appear to be minimal. In the short-term, there will be absolutely no change, as PIPA continues to be in full force and effect, with the exception of the collection, use and disclosure of personal information in the context of collective bargaining, for the next twelve months. Twelve months from now, revisions to PIPA will necessarily result in legislation that is of narrower application, and not as restrictive, as current legislation, and will presumably permit unions to collect, use and disclose personal information obtained from lawful picket-line activities.  In the alternative, if the Alberta legislature chooses not to revise PIPA, the legislation will be invalidated and the federal Personal Information Protection and Electronic Documents Act (PIPEDA) will be substituted for PIPA as Alberta’s privacy legislation.

Ryan D. Campbell