Supreme Court Strikes Down Alberta Privacy Legislation

The Supreme Court of Canada recently struck down Alberta’s privacy legislation in its decision in Information and Privacy Commissioner, et al. v. United Food and Commercial Workers, Local 401.¹ Torys acted as counsel to the intervener, Canadian Civil Liberties Association.

At issue was whether the Alberta Personal Information Protection Act (PIPA) struck a constitutionally acceptable balance between an individual’s interest in controlling the collection, use and disclosure of their personal information and a union’s right to free expression under section 2 (b) of the Charter. The Court determined that in respect of this balance, PIPA was unconstitutional because its limits on free expression were overbroad. To give the Alberta legislature time to revise the statute, the Court suspended its declaration of invalidity for one year.

Background

The case arose out of a lawful strike at a casino in West Edmonton Mall. The union videotaped and photographed the picket line near the casino’s main entrance. Signs posted in the vicinity of the picket line indicated that the images might be published to a website—although they never were—and some of the images were featured on posters and in union newsletters and leaflets. Several individuals filed complaints with the Alberta Information and Privacy Commissioner, alleging that the union’s activities violated PIPA, which restricts the collection, use and disclosure of personal information without consent.

A judicial review of the Commissioner’s decision found that PIPA directly limited the Union’s freedom of expression in a manner that was not justified under section 1 of the Charter. In upholding that result, the Court of Appeal gave minimal weight to the complainants’ privacy interests and emphasized the fact that the individuals were appearing in public at the time of the union’s collection of their personal information.

The Supreme Court’s Decision

In a unanimous decision, the Court dismissed the appeal. It held that to the extent that PIPA restricts a union’s ability to collect, use or disclose personal information for legitimate labour relations purposes, the legislation was unconstitutional. The union’s activities in this case fell squarely within the protected purposes.

Importantly, the Court also acknowledged that PIPA was enacted as "part of an international movement towards giving individuals better control over their personal information" and that a person’s interest in their personal information was not automatically forfeited when they appeared in public. However, the Court also underscored the fundamental importance of freedom of expression in labour disputes and the severity of restricting a union’s ability to voice its dissatisfaction with the employer. PIPA’s restrictions on free expression were overbroad in this case because they limited the union’s rights "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".² Given the comprehensive and integrated structure of the statute, the Court elected, in accordance with requests from the Commissioner and Alberta’s Attorney General, to declare PIPA entirely invalid instead of selecting one of various possible amendments.

Implications

The Court’s decision is noteworthy for the following reasons:

• It sets a precedent for constitutional challenges to other privacy laws, including similar provincial private sector privacy legislation in British Columbia, Manitoba, and Quebec, and the federal Personal Information Protection and Electronic Documents Act (PIPEDA). However, given the unique facts of the case and the importance of free expression in the labour context, it is not certain that other challenges under different circumstances would be successful. The Court also noted that the scope of PIPA is considerably broader than the scope of PIPEDA. Unlike PIPEDA, PIPA’s limitations on the collection, use and disclosure of personal information are not restricted to activities undertaken for commercial purposes.
   
• The breadth of the Court’s ruling (a general declaration of invalidity) and the lack of guidance with respect to specific measures to render PIPA constitutional mean there is substantial uncertainty regarding the nature and scope of the amendments that the Alberta government will implement in response to this decision. Although the precise approach that will be taken cannot yet be determined, the Court’s decision suggests that any revised legislation will likely involve a contextual analysis, including a consideration of the nature of the personal information involved, in an effort to balance constitutional interests in a more meaningful way.
   
• Canada’s top court recognized the quasi-constitutional nature of privacy legislation. The Court noted that in light of recent technological advances there is increasing importance for the right to control one’s personal information even when appearing in public.

For further information, please see UFCW and PIPA.

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¹ 2013 SCC 62 [UFCW].

² Ibid.

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