The Supreme Court of Canada ("SCC") unanimously found Alberta's Personal Information Protection Act, S.A. 2003, c. P 6.5 ("PIPA") to be unconstitutional as it does not strike an appropriate balance between an individual's right to control the collection, use, and disclosure of its personal information and a union's right to freedom of expression.

In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, employees of the Palace Casino at West Edmonton Mall conducted a lawful strike in 2006 which lasted 305 days. The United Food and Commercial Workers, Local 401 representing the workers (the "Union") and a security company hired by the employer video-taped and photographed the picketers at the Casino's entrance. The Union posted signs stating that images of persons crossing the picketline may be posted on "www.casinoscabs.ca". Several people who were filmed crossing the picketline complained to the Alberta Information and Privacy Commissioner (the "Commissioner") under PIPA, alleging that the Union infringed their privacy rights by collecting, using and disclosing their personal information without their consent.

Tribunal decision

An Adjudicator was appointed by the Commissioner to decide whether the Union had contravened PIPA by collecting, using and disclosing the video and pictures depicting the individuals crossing the picketline. The Adjudicator concluded that the Union's collection, use and disclosure of the information was not authorized by PIPA because the collection, use and disclosure was done without consent, and did not fall under one of PIPA's exceptions.

On judicial review to the Court of Queen's Bench of Alberta, PIPA was found to violate the Union's rights under s. 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter"), which provides the right to freedom of expression.

Court of Appeal

The Alberta Court of Appeal upheld the decision of the Court of Queen's Bench of Alberta. It held that the privacy interest at stake was minor, as the complainants were in a public place, crossing a picketline, and had notice that their images were being collected. The minimal privacy interest of those crossing the picketline was balanced with the right of workers to engage in collective bargaining and of the Union to communicate with the public regarding its position on the labour dispute. The Court of Appeal held that there was a breach of s. 2(b) of the Charter that could not be saved under s. 1, which permits the government to restrict Charter rights and freedoms, provided that the restriction has a justifiable purpose and is proportional. Therefore, the Court of Appeal granted the Union a constitutional exemption from the application of PIPA.

Supreme Court of Canada

The SCC confirmed that PIPA establishes a general rule that organizations cannot collect, use or disclose personal information without consent. This rule generally applies to every organization and in respect of all personal information (PIPA is broader that the federal Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 ("PIPEDA"), which only applies to activities undertaken for commercial purposes). PIPA defines "personal information" broadly as information about an identifiable individual. However, PIPA creates exceptions to the consent requirement where the collection, use or disclosure of information is reasonable for the purposes of an investigation or a legal proceeding, or is "publicly available as prescribed or otherwise determined by the regulations".

The Union collected, used and disclosed the personal information, without obtaining the consent of those crossing the picketline. Furthermore, the Union's collection, use and disclosure did not fall under one of PIPA's exceptions. However, the right to freedom of expression under s. 2(b) of the Charter was clearly engaged by the Union's activities. One of the primary purposes for the Union's collection of personal information was to dissuade people from crossing the picketline. Recording conduct related to picketing is expressive activity, as its purpose was to persuade individuals to support the Union. The SCC held that PIPA failed to strike an acceptable balance between the interests of individuals in controlling the collection, use and disclosure of their personal information and the Union's freedom of expression.

The SCC further held that individuals do not automatically forfeit their interest in retaining control over their personal information by appearing in public. The SCC stated 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." The SCC concluded that to the extent that PIPA restricted collection for legitimate labour relations purposes, it breached s. 2(b) of the Charter and could not be justified under s. 1.

The SCC declared that PIPA in its entirety was invalid, but suspended the declaration of invalidity for twelve months to provide the Alberta legislature with time to amend PIPA.

Impact of Decision

The amendments to PIPA may result in substantive changes that affect the rights of unions and employees during the course of a labour strike. The decision may potentially affect the collection, use and disclosure of personal information in other public settings in which video surveillance is used.  More generally, it may also impact provincial privacy legislation in British Columbia, Manitoba and Quebec, as well as the federal privacy legislation, PIPEDA. Employers, unions and businesses should review the amended PIPA to ensure that the collection, use and disclosure of personal information of employees and individuals comply with the legislative requirements.

For more information, here is the full docket report.