As we discussed in a blog post last year, the Alberta Court of Queen's Bench recently struck down provisions of Alberta's Personal Information Protection Act (PIPA) that were found to infringe the right to free expression under the Charter. The case considered the activities of a union that had videotaped picketing at the West Edmonton Mall casino in order to publicize images of individuals that crossed the picket lines. At trial, the union had relied on a number of arguments to justify its activities, including the fact that PIPA does not apply to personal information collected for journalistic purposes, as well as the exemption from the consent requirement with regards to personal information that is "publicly available". Ultimately, the trial court found the provisions in question to be too narrow and, thus, unconstitutional. In a recent decision of the Alberta Court of Appeal, Justice Slatter agreed that the application of PIPA to the union's activities infringed the Charter.
In its constitutional analysis, the Court of Appeal concurred with the trial court's finding that the picket line and its related videotape recordings were an expressive activity. Meanwhile, in considering the potential justifications for infringement, the Court of Appeal found there to be a pressing and substantial concern in the potential misuse of personal information, as well as a rational connection between the PIPA's provisions limiting the use of personal information and the objectives of the Act.
The Court found fault, however, when it considered the proportionality of the provisions to the legislative objectives. Specifically, the Court asserted that PIPA exhibited substantial over-breadth in a number of ways, including with respect to its narrow definition of "publicly available" information, its lack of a general exemption for information collected and used for free expression, and the lack of an exemption allowing organizations to reasonably use personal information required in the legitimate operation of their businesses.
The Court of Appeal maintained that the salutary effects of PIPA did not outweigh its deleterious effects. Specifically, the Court found that "[w]hile the protection of personal information is important, it is no more important than collective bargaining and the rights of workers to organize. It is also no more important than the right of the union to communicate its message to the public." In this case, privacy interests were minimal, as those who were videotaped were in a public place and crossing an obvious picket line in the face of warning signs that their images were being collected. Privacy expectations were therefore low, and holding people accountable for what they do or do not do in public was considered to be a component of the right to free expression.
Ultimately, therefore, the Court of Appeal agreed with the trial court's finding that specific provisions of PIPA infringed on the Charter's right to freedom of expression. Notably, however, the Court of Appeal varied the trial court's remedy. While the lower court had invalidated the offending provisions, the Court of Appeal found there to be no obvious way to amend the statute to allow for its constitutionality. As such, the Court of Appeal simply declared that the application of PIPA to the activities of the union was unconstitutional.
In response to the decision, the Alberta Information and Privacy Commission has now announced that it will apply to the Supreme Court of Canada for leave to appeal. We will be following the outcome of the leave application with details to follow.
For more information, see United Food and Commercial Workers, Local 401 v Alberta (Attorney General).
