By: Daniel Mayer and Christopher Pigott
Last Friday, the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 unanimously held that Alberta’s Personal Information Protection Act (“PIPA”) unduly restricted a union’s right to freedom of expression during the course of a lawful strike, and thereby breached section 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”).
Specifically, the Supreme Court found that PIPA was unconstitutional because it restricted the ability of the United Food and Commercial Workers, Local 401 (“UFCW”) to collect, use and disclose personal information for legitimate labour relations purposes during the course of a legal strike. The Supreme Court further concluded that the legislation could not be saved as a “reasonable limit” under section 1 of the Charter. Ultimately, the Court held that PIPA was invalid in its entirety, but suspended the application of its ruling for 12 months to give the legislature the opportunity to determine how to make PIPA constitutionally compliant.
What is PIPA?
PIPA is Alberta’s private sector privacy legislation. It imposes restrictions on the collection, use and disclosure of personal information. It is very similar to the Personal Information Protection and Electronic Documents Act (“PIPEDA”), the federal private sector privacy legislation. However, while PIPEDA applies to information gathered during an activity for “commercial purposes”, PIPA establishes a general rule that organizations cannot collect, use or disclose personal information without consent. This distinction makes PIPA broader than PIPEDA in its scope and application. PIPA contains exemptions to the general rule; for example, PIPA does not apply to information gathered for artistic, literary or journalistic purposes.
Facts of the Case
UFCW had video recorded and photographed individuals crossing a picketline during a legal strike. Some photos were used in UFCW’s promotional materials. In one instance, photographs of the employer’s vice-president were displayed on a poster in a humorous way. Some of these individuals complained to the Information and Privacy Commissioner of Alberta.
The Adjudicator appointed by the Commissioner found that UFCW’s collection, use and disclosure of private information were for “expressive purposes” because UFCW was promoting the purpose of a strike. But the Adjudicator held that the union had violated PIPA because there was no exemption in PIPA that would protect UFCW’s expressive purposes.
On judicial review and subsequent appeal to the Court of Appeal, the restrictions imposed by PIPA on the union’s expressive purposes in the context of a labour dispute were found to be unconstitutional and could not be saved by Section 1.
The SCC’s decision
The Supreme Court had no difficulty agreeing that the UFCW’s collection, use and disclosure of private information had an expressive purpose, and that the UFCW’s right to freedom of expression under section 2(b) of the Charter was infringed by PIPA. In the Supreme Court’s view, this conclusion flowed from the fact that PIPA totally prevented the union from collecting, using and disclosing personal information to advance its interests in a labour dispute.
The Supreme Court also found that PIPA could not be justified as a “reasonable limit” on a constitutional right under section 1 of the Charter. While the Supreme Court acknowledged that PIPA was directed towards the pressing and substantial objective of providing individuals with some control over their personal information, it ultimately concluded that the restrictions imposed by the legislation were disproportionate to its objectives.
More specifically, the Supreme Court concluded that the “price PIPA exacts” was disproportionate to its benefits because it restricted the expression of “views on a matter of significant public interest and importance,” but did not provide any exception or accommodation for a union engaged in a lawful strike. A union’s expressive purposes in this context, which would include bringing labour disputes within the public realm of debate, were at the core of the expressive activity covered by section 2(b) of the Charter. The Supreme Court went even further, drawing a link between protected expression during labour disputes and the protected right to freedom of association guaranteed by section 2(d) of the Charter.
At the same time, however, it should be noted that the Supreme Court’s decision hinged in large part on its conclusion that PIPA totally restricted the UFCW’s ability to express itself in the strike at issue. Indeed, the Supreme Court specifically stated that freedom of expression is not “an absolute value.” Moreover, the context surrounding the UFCW’s collection of information in this case was an important consideration in the Supreme Court’s decision: the personal information at issue was collected during an open political demonstration where it was readily and publicly observable; the individuals who crossed the picketline could reasonably have expected to have their picture taken and disseminated; and the images only depicted individuals crossing the picketline, not intimate biographical details.
The impact of Friday’s decision was somewhat contained. It mainly involved the intersection between freedom of expression and provincial privacy legislation. However, the residual effects of the decision, from a broader labour relations perspective, will certainly have an impact in future issues regarding the activities of unions during a legal strike.