BULLETIN: SCC Declares Alberta’s Personal Information Protection Act Unconstitutional, Affirms Freedom of Expression in Labour Context

In a unanimous decision, the Supreme Court of Canada in Alberta v United Food and Commercial Workers, Local 401 2013 SCC 62 declares Alberta’s Personal Information Protection Act (PIPA) to be unconstitutional, as it breaches a union’s freedom of expression, protected under s. 2(b) of the Charter of Rights and Freedom, and cannot be justified under s. 1. Despite finding PIPA to be unconstitutional solely in the labour relations context, the court declares the entire statute invalid. However, a 12 month reprieve is granted, allowing the Alberta legislature time to enact legislation that is constitutionally compliant.

The case centres around the extent of a union’s right to film individuals crossing a picket line, in light of  PIPA‘s clear restrictions on this type of activity.  After negotiations broke down between management and unionized workers at the Palace Casino in Edmonton, the union began to film individuals who crossed the picket line with the intent of posting their images online. Complaints were filed with the the Alberta Information and Privacy Commissioner (AIPC), alleging that the union collected, used and disclosed personal information about them without their consent, in contravention of PIPA. AIPC, which is prevented from deciding questions of constitutional law, noted the union’s expressive purposes for filming the picket line but concluded that it contravened PIPA, and ordered it to stop collecting the information and to destroy any personal information it had collected. On appeal, both the Alberta Court of Queen’s Bench and Alberta Court of Appeal ruled that PIPA violated the union’s freedom of expression under s. 2(b) of the Charter and this violation could not be saved under s. 1, as the legislation’s broad nature unjustifiably restricted expression in support of labour relations and collective bargaining activities.

Justices Abella and Cromwell, writing for the court, examine the breadth of PIPA, as it pursues its purpose of protecting personal information and privacy. PIPA, they find, “establishes a general rule that organizations cannot collect, use or disclose personal information without consent.” The legislation defines “organization” as corporations, unincorporated associations, trade unions, partnerships, or  individuals acting in a commercial capacity, and “personal information” in exceedingly broad terms, including information that is not necessarily private.

While PIPA‘s breadth is moderated by certain exemptions, for instance, individuals acting in a personal or domestic capacity, non-profits engaging in non-commercial activity,  solely artistic or literary purposes, solely journalistic purposes, and where information collected, used or disclosed is for a possible investigation or legal proceeding. However, notwithstanding these statutory exemptions, the court concludes,”without difficulty,” that PIPA infringe upon the union’s s. 2(b) right to free expression.

In the court’s s. 1 justification analysis, it acknowledges PIPA‘s beneficial role and purpose, particularly in an age “where new technologies give organizations an almost unlimited capacity to collect personal information, analyze it, use it and communicate it to others for their own purposes.” However, it does so at too great a price. PIPA protects all private information, regardless of context. In this case, information was collected during a public political demonstration — picketing during a lawful strike — where there was no reasonable expectation of privacy, as doing so would “impede the formulation and expression of views on matters of significant public interest and importance”. Moreover, information was limited to images and not the intimate biographical details or personal choices of individuals appearing within them.

PIPA restricts expressive activity that is at the core of protected expression under s. 2(b) in the labour relations context. For instance, “ensuring the safety of union members, attempting to persuade the public not to do business with an employer and bringing debate on the labour conditions with an employer into the public realm.” This expressive activity is also directly related to the s. 2(d) Charter right of workers to associate to further  workplace goals. In outlining this, the court also devotes passages to explaining the important of free expression in the labour relations context to enhancing broader societal interests:

Since the Second World War, the Canadian government has recognized that unions have a role to play in the Canadian economy and society more broadly: George W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), vol. 1, at pp. 1-11 to 1-16. This recognition includes a general acceptance that workers have the right to associate and bargain collectively and that when collective bargaining breaks down, unions and employers may, in certain circumstances, legitimately exert economic sanctions in order to facilitate resolution of the dispute in their favour: Wesley B. Rayner, Canadian Collective Bargaining Law (2nd ed. 2007), at pp. 2 and 457.

Within the labour context, picketing represents a particularly crucial form of expression with strong historical roots. Strikes and picketlines have been used by Canadian unions to exert economic pressure and bargain with employers for over a century: affidavit of Dr. Jeffery M. Taylor, A.R. vol. IV, at p. 35. The use of picketlines is an invaluable tool in the economic arsenal of workers in the collective bargaining process: Rayner, at p. 483. As Judith McCormack, then Chair of the Ontario Labour Relations Board, explained in Great Atlantic & Pacific Co. of Canada, [1994] O.L.R.B. Rep. March 303:

Picketing is . . . part of a group of economic sanctions which are considered key to the scheme of collective bargaining as a whole. While such sanctions are not frequently resorted to in the overall landscape of collective bargaining, it is axiomatic that the underlying threat of such economic conflict is what drives the vast majority of uneventful negotiations and contract settlements. [para. 35]

The effectiveness of picketlines is dependent on the ability of the union to try to convince the public not to cross the picketline and do business with the employer. Cory J. recognized the significance of the role of public opinion in KMart, where he observed that “it is often the weight of public opinion which will determine the outcome of the dispute”: para. 46. In some cases, this goal may be achieved simply by making others aware of the labour dispute. In others, however, a union may achieve its goal by putting pressure on those who intend to cross the picketline. The imposition of public or economic pressure has come to be accepted as a legitimate price to pay to encourage the parties to resolve their dispute. As McLachlin C.J. and LeBel J. observed in Pepsi, strikes are not tea parties: para. 90. This Court has acknowledged that such pressure is permissible as long as it does not rise to the level of a tortious or criminal act: Pepsi, at paras. 96 and 101-7.

To the court, PIPA “imposes restrictions on a union’s ability to communicate and persuade the public of its cause, impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike.” This infringement on a union’s protected freedom of expression rights is disproportionate to the province’s objective of providing individuals who cross the picket line control over their personal information.

In oral submissions, AIPC and the Attorney General of Alberta requested that, if they were unsuccessful, that the court strike down PIPA in its entirety. The court grants that request, declaring PIPA invalid, but also provides a 12 month exemption to that declaration, in order to allow the Alberta legislature time to draft new legislation.

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