Back to the Drawing Board? Supreme Court Finds Parts of Alberta’s Privacy Legislation Unconstitutional
By Bernice Karn
On November 15, 2013, the Supreme Court of Canada (the “SCC”) released its decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers. The SCC determined that the rights protected by Alberta’s privacy legislation disproportionately infringe on a union’s right of freedom of expression enshrined in the Canadian Charter of Rights and Freedoms (the “Charter”).
At the request of the Government of Alberta and the Information and Privacy Commissioner of Alberta, the SCC declared the entirety of the Personal Information Protection Act (“PIPA”) to be invalid. However, the SCC has suspended this declaration of invalidity for a period of twelve (12) months to provide the Alberta legislature the opportunity to determine how best to make PIPA constitutionally compliant.
In 2006, during a lawful strike, the United Food and Commercial Workers, Local 401 (the “Union”) recorded and photographed individuals crossing the picketline. The Union also posted signs in the picketing area stating that images of individuals crossing the picketline would be placed on a website. Several individuals who were recorded crossing the picketline filed complaints with the Information and Privacy Commissioner of Alberta under PIPA. It is important to note that no recordings of these individuals were placed on the website.
- Scope of PIPA is Too Broad. When compared to the federal Personal Information and Electronic Documents Act (“PIPEDA”), the SCC found that the scope of PIPA is considerably broader. A key distinction is that PIPA’s limitations on the collection, use and disclosure of personal information are not restricted to those activities undertaken for commercial purposes. In fact, PIPA establishes a general rule that organizations (e.g., corporations, unincorporated associations, trade unions, partnerships, individuals acting in a commercial capacity) cannot collect, use or disclose personal information without consent.
- PIPA Disproportionately Limits Freedom of Expression. Although the breadth of PIPA is mitigated by a series of exemptions, none of these exemptions permit a union to collect, use or disclose personal information for the purpose of advancing its interests in a labour dispute. According to the SCC, “PIPA imposes restrictions on a union’s ability to communicate and persuade the public of its cause, impairing its ability to use the one of its most effective bargaining strategies […]”.
Despite the significant purpose of PIPA, “[t]he price [it] exacts [...] 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.” As a result, in this particular case, the SCC found that PIPA did not include any mechanisms by which a union’s constitutional right to freedom of expression could be balanced with the interests protected by the legislation.
- PIPA Struck Down in its Entirety. Given the comprehensive and integrated structure of the legislation, and at the request of Government of Alberta and the Information and Privacy Commissioner of Alberta, the SCC opted not to amend specific sections of PIPA. Rather, the SCC declared PIPA, as a whole, to be invalid, but suspended this declaration of invalidity for a period of twelve (12) months to provide the Alberta legislature the opportunity to determine how best to make PIPA constitutionally compliant.
It will be interesting to see how the Alberta legislature responds to this decision, given that the SCC noted that “[...] like privacy, freedom of expression is not an absolute value and both the nature of the privacy interests implicated and the nature of the expression must be considered in striking an appropriate balance”. Accordingly, the key challenge for legislators will be to strike that balance between the benefit(s) that privacy legislation offers individuals without infringing on the right to freedom of expression under the Charter.
We note that, in light of this decision, PIPEDA and substantially similar legislation may be open to constitutional challenges similar to those considered in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers. In particular, it will be worth seeing whether the federal government will revisit Bill C-12 (An Act to Amend PIPEDA), which died in the last session.
For a copy of the Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers decision, please click here.
For further information regarding this matter, please contact Bernice Karn, Imran Ahmad or other members of Cassels Brock & Blackwell’s Privacy Group.