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On April 20, 2012, the Alberta Court of Appeal released its
decision in United Food and Commercial Workers, Local 401 v.
Alberta (Attorney General)1 clarifying the
treatment of the statutory privacy rights created by the
Alberta Personal Information Protection Act2
vis-ŕ-vis the right to free expression guaranteed by the
Canadian Charter of Rights and Freedoms. In this decision,
the Court held that a union's ability to, among other things,
make and distribute recorded images of individuals crossing a
picket line was protected as an expressive right under the
Charter and trumped any such individuals' privacy
rights under the Act. The Court, most notably, also held that the
Act was unconstitutional, and that the protections afforded
thereunder cannot be equated to being constitutional in nature.
Background
During a strike at the Palace Casino in Edmonton, the United
Food and Commercial Workers, Local 401 Union (UFCW) took video and
camera recordings of the picket line and posted signs in the area
stating that images of those who crossed the picket line might be
placed online. An adjudicator appointed by the Alberta Information
and Privacy Commissioner under the Act held that the collection or
use of personal information by the UFCW, other than for use in an
investigation or legal proceeding, contravened the Act. The UFCW
subsequently sought judicial review of this decision. Agreeing with
the UFCW, the chambers judge concluded that the Act "purposely
and directly" limited the UFCW's freedom of expression,
and declared certain portions of the Act unconstitutional. The
Attorney General of Alberta appealed this decision to the Alberta
Court of Appeal.
The Court's Decision
As the Supreme Court of Canada had previously held that the
freedom of expression encompasses the ability to collect
information that is to be distributed when the distribution
constitutes an expressive activity, the Court of Appeal found that
the prohibition of the UFCW's dealings with the recordings of
its picket line was a direct infringement of its freedom of
expression.
While the Court acknowledged the substantial importance of
protecting society's reasonable expectations of privacy and
limiting the misuse of personal information, it emphasized that the
application of the Act must be sensitive to its impact on the
Charter-protected right to free expression. Indeed, it
held that the protection of personal information is no more
important than collective bargaining, the rights of workers to
organize, and the right of the union to communicate its message to
the public.
In assessing the constitutionality of the Act, the Court held
that the Act was over-broad on account of the following:
"It covers all personal information of any kind, and
provides no functional definition of that term. ... The
Commissioner has not to date narrowed the definition in his
interpretation of the Act in order to make it compliant with
Charter values.
The Act contains no general exception for information that is
personal, but not at all private. For example, the comparative
statutes in some provinces exempt activity that occurs in some
public places.
The definition of 'publicly available information' is
artificially narrow.
There is no general exemption for information collected and
used for free expression.
There is no exemption allowing organizations to reasonably use
personal information that is reasonably required in the legitimate
operation of their businesses."
Accordingly, the Court affirmed the chamber judge's order
quashing the offending portions of the Adjudicator's decision,
and deferred to the Legislature of Alberta to make the appropriate
amendments to the Act to bring it in line with the
Charter
Implications
The Alberta Information and Privacy Commissioner has sought
leave to appeal the Court's decision to the Supreme Court of
Canada.3 In the event that leave is not granted, this
decision will circumscribe the privacy protections afforded under
the Act, and will thus have a significant effect on this statute,
along with other statutes that are substantially similar
thereto.4 As a result, businesses are encouraged to: (i)
monitor possible developments with respect to this decision at the
Supreme Court and the Legislature of Alberta; and (ii) amend their
privacy policies accordingly.
4. For example the British Columbia Personal Information
Protection Act, SBC 2003, c. 63 and the Personal Information
Protection and Electronic Documents Act, SC 2000, c.
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.
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