Canada: Alberta Court Declares Substantial Aspects Of Privacy Legislation Unconstitutional


The Alberta Court of Appeal (the Court) recently released its decision in U.F.C.W., Local 401 v. Alberta (Information and Privacy Commissioner). The Court held that substantial aspects of Alberta's Personal Information Protection Act (the Act) unconstitutionally infringed on freedom of expression. Moreover, the Court invited the Alberta Legislature to amend the Act to bring it in line with the Canadian Charter of Rights and Freedoms (the Charter). This decision suggests that interpretations of the Act by the Alberta Privacy Commissioner (the Commissioner) may be narrower in the future in order to address Charter values such as freedom of expression.


The United Food and Commercial Workers, Local 401 (the Union) represented workers at the Palace Casino in Edmonton. The Union videotaped its picket line during a strike in 2006, a standard practice in Alberta. The Union posted signs in the area stating that images of persons crossing the picket line might be placed on a website. The Union also used collected images for other purposes, including: gathering evidence that might become relevant to an investigation or legal proceeding, deterring violence, and supporting the morale of workers through satirical posters and leaflets. Complaints were filed with the Commissioner from several persons on the basis that their images were recorded without consent.

The Union conceded that recording persons crossing the picket line was "personal information" within the meaning of the Act (i.e., "information about an identifiable individual"), but argued that it was entitled to record these individuals and use their images without consent for several reasons:

  • The recordings were for "journalistic purposes" and were exempt from the requirements of the Act pursuant to s. 4 of the Act;
  • The recordings were collected in anticipation of legal proceedings before the Labour Relations Board and that consent from individuals was not required pursuant to s. 14 of the Act; and
  • If the recordings were not permitted under the Act, the Act was overbroad and violated the Union's s 2(b) Charter right to freedom of expression.

The Adjudicator appointed by the Commissioner concluded that the Union was not entitled to videotape the picket line or use the information except for the limited purpose of anticipated legal proceedings and ordered the Union to destroy most of the information in its possession. The Union applied for judicial review of the Adjudicator's decision to the Alberta Court of Queen's Bench, alleging that its Charter rights had been infringed. Justice Goss quashed substantial aspects of the Adjudicator's decision and found that portions of the Act unconstitutionally infringed the Union's freedom of expression. The Attorney General of Alberta appealed that decision.


The Court held that significant portions of the Act and the Adjudicator's interpretation of the Act were unconstitutional because they infringed the Union's Charter right to freedom of expression.

Justice Slatter, for the unanimous Court, first addressed the issue of s. 4 of the Act, which exempts the collection and use of information when done for certain named purposes, such as "journalistic purposes", provided it is used "for no other purpose". He clarified this exemption, holding that:

  • As long as the purpose for which information is collected or used is exempt under the Act, it does not matter if that purpose is an insignificant part of an organization's overall mandate. Even though the Union's purpose was not primarily journalistic, it was entitled to rely on the exemption if the organization was using information for that purpose.
  • Information collected for journalistic purposes was not "tainted" and unusable if it was also collected for other purposes. The Union was still entitled to use the information it collected without consent, but only to the extent permitted by the Act, such as for journalistic purposes.

Justice Slatter rejected the lower court's approach of using a broad and expansive interpretation of the term "journalism" to prevent the Act from unconstitutionally interfering with the Union's freedom of expression. He held that the constitutionality of the Act should be addressed directly through application of the Charter. Finding that the Adjudicator's interpretation of the Act had offended the Union's right to freedom of expression, Slatter J.A. assessed whether the Act as a whole was justified under s. 1 of the Charter, holding:

Pressing and Substantial Problem. The objective of the Act was to address the potential misuse of personal information. Limiting the ability of organizations to collect, store, and use that information was rationally connected to achieve that objective.

Minimal Impairment. Constitutional problems under the Act arose because of its breadth. Examples of over-breadth in the Act include:

  • Covering all "personal information" of any kind while providing no functional definition of the term. The definition of "personal information" (i.e., "information about an identifiable individual") is essentially circular and the Commissioner has not narrowed his interpretation of this term to make it compliant with the Charter;
  • Defining "publicly available information" in an artificially narrow manner;
  • No general exceptions for information that is personal but not private, such as activities occurring in public places;
  • No general exemptions for information collected and used for free expression; and
  • No exemptions for allowing organizations to reasonably use personal information that is reasonably required to operate their businesses.

Proportionality.The benefits of the Act did not outweigh its negative effects. While the protection of personal information is important, it is no more important than the rights of a union to engage in collective bargaining and communicate its message to the public. Furthermore, the privacy interest being protected was minimal – the individuals videotaped were in a public place and had warnings that their images were being collected: privacy expectations were low and did not justify a significant stifling of expression.

Justice Slatter held that the Commissioner could not justify the infringements on freedom of expression arising from the Act and he quashed the offending portions of the Adjudicator's decision. Noting that the courts did not have the institutional or legislative ability to rewrite the legislation, he declined to strike out or read down portions of the Act, explicitly stating that it was up to the Legislature to amend the Act to make it constitutional.


Organizations, individuals, and decision-makers will likely be perplexed by this decision because the Court did not strike down any portion of the Act. While the decision is significant, its direct impact on Alberta's privacy regime is unknown. Nevertheless, we believe that this decision indicates the following:

  • The courts are open to reviewing decisions of the Commissioner through a constitutional challenge based on freedom of expression;
  • If the Commissioner follows this decision, we can expect restricted interpretations of "personal information" and a heightened ability of organizations and individuals to collect and use such information for reasonable purposes connected to expressive activity; and
  • If the Alberta Legislature heeds the comments of the Court, substantial amendments to the Act can be expected, although it is unknown whether such amendments will come before the Act's next comprehensive review which is to begin by July 1, 2015.

The Court's finding that the Act unconstitutionally interferes with freedom of expression also sets a precedent for future Charter challenges to other Canadian privacy legislation, including British Columbia's Personal Information Protection Act which was drafted in tandem with the Alberta Act, and the federal Personal Information Protection and Electronic Documents Act, upon which the Alberta Act is closely modelled.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
27 Oct 2016, Seminar, Toronto, Canada

Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.

1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.