In April 2012, the Alberta Court of Appeal (ABCA) issued a significant decision that addressed picketing in the context of a labour dispute, video surveillance and privacy. In United Food and Commercial Workers, Local 401 v. Alberta (Attorney General), the ABCA examined the nature and boundaries of picketing, as well as the role that privacy legislation plays in video surveillance during the course of a labour dispute.
At issue were the privacy rights created by Alberta's Personal Information Protection Act (PIPA)1 and the right to free expression, which is constitutionally protected in the Canadian Charter of Rights and Freedoms (Charter). The ABCA held that the United Food and Commercial Workers (UFCW) was entitled to make and distribute recorded images of people crossing a picket line because of the Charter, which superseded an individual's privacy rights under the PIPA. The ABCA also held that the PIPA was unconstitutional, and that the protection of privacy rights granted under the PIPA could not be equated to being constitutional in nature.
A Video Camera and a Picket Line
A strike took place at the Palace Casino in Edmonton. The UFCW, Local 401, took video recordings and photographs of picket line activity (including patrons and employees crossing the picket line). It also placed signs in the area warning individuals that images of those who crossed the picket line might also be placed on the internet. A complaint was filed with the Alberta Privacy Commissioner (Commissioner). An adjudicator connected with the Commissioner's office inquired into the complaint and ultimately held that the collection and use or disclosure of personal information (i.e., images of the individuals crossing the picket line) by the UFCW contravened the privacy legislation. The adjudicator also held that the only reasonable basis for collecting the information contained in the video/photograph was for the limited purpose of an investigation or legal proceeding, as provided for in the PIPA. The UFCW sought judicial review of the adjudicator's decision. The Chambers judge accepted the UFCW's argument that the Charter-guaranteed right to free expression superseded the PIPA and declared portions of the PIPA to be unconstitutional. The Court of Queen's Bench decision was further appealed to the ABCA.
The ABCA found that the prohibition of the UFCW's use of the recordings of its picket line was a direct infringement of the UFCW's freedom of expression rights guaranteed under theCharter. The Supreme Court of Canada (SCC) has previously held that the freedom of expression includes the ability to collect information that is to be distributed when the distributions constitute an expressive activity.
The ABCA recognized that the statutory purpose of protecting reasonable expectations of privacy and controlling or minimizing the misuse of personal information were important objectives. However, it also held that the Charter-protected right to free expression must take precedence. The ABCA opined that protecting personal information was of the same importance (and certainly not more important) than collective bargaining, worker's right to organize and the right of the UFCW to communicate its message publicly. The ABCA also stated that informing the general public about the labour dispute, including taking steps to discourage the public from doing business with the employer affected by the labour dispute, and picketing were all activities protected by the freedom of expression under the Charter.
The ABCA specifically held that the privacy legislation was overly broad and stated the following:
Strikes are not tea parties [...]. Attempting to persuade the public to support the Union, and to suspend doing business with the employer, are key tactical and economic components of a strike. So long as there is no promotion of violence or other activity, a reasonable amount of psychological or other pressure may be brought to bear on all those involved [...].
[...]
Dissuading people from crossing picket lines, enhancing morale of the strikers, deterring violence and threats, and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression. Persuading people to think or act in a certain way is a direct purpose of free expression.
The ABCA confirmed the lower Court's decision, quashing the adjudicator's decision and referred the matter to the Alberta Legislature to make the appropriate amendments to the PIPA in order to make it compliant with the Charter. The Commissioner has sought leave to appeal to the SCC.
Footnote
1. Alberta enacted private sector privacy legislation in 2004. This legislation applies to all employers in the province, except for the provincial public sector, which is regulated pursuant to the Freedom of Information and Protection of Privacy Act. Currently, only the federal government, Alberta, British Columbia and Québec have private sector privacy legislation.
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