Today, the Supreme Court of Canada granted leave to appeal from
a decision of the Alberta Court of Appeal declaring the application
of Alberta's Personal Information Protection Act to certain
union activities during a strike to be unconstitutional. This case
may prove to be pivotal for the interpretation and constitutional
validity of private sector privacy laws in Canada.
The case, now titled Information and Privacy Commissioner v. United Food
and Commercial Workers, Local 401, involves a union videotaping
people crossing a picket line. The union had also threatened
to post the images to an Internet website. One of the images
was used for posters, leaflets and a newsletter. If PIPA applied,
the union would need to find an exception to the collection and use
of that personal information without reasonable consent.
The union's initial argument before the Alberta Court of
Appeal was that its collection and use of the personal information
(the images of people crossing the picket line) was exempt from the
requirement for reasonable consent by virtue of the exception for
The Court of Appeal concluded that the union's activities
did not fall within the exemption for journalism. However, the
court went on to assess whether PIPA unreasonably restricted the
union's right to freedom of thought, belief, opinion and
expression under section 2(b) of Canada's Charter of
Rights and Freedoms.
The court accepted that the union was engaged in expressive
activities in support of labour relations and collective bargaining
activities by the union in mid strike. PIPA restricted that right
if there were no exemption available. So, the question for
the court was whether the restrictions imposed by PIPA were
justifiable in a free and democratic society. In other words, were
the restrictions proportional to the harm being regulated by PIPA
(the harm being the potential misuse of personal information and
the interest of protecting reasonable expectations of privacy)?
The court concluded that the restrictions were overbroad. In
particular, the court identified the following concerns (at para.
[The Act] covers all personal information of any kind, and
provides no functional definition of that term. (The definition of
"personal information" as "information about an
identifiable individual" is essentially circular.) The
Commissioner has not to date narrowed the definition in his
interpretation of the Act in order to make it compliant with
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
The definition of "publicly available information" is
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.
The court did not strike down any particular portion of the
statute because there was "no obvious way to prune this
statute so as to make it constitutional". Instead, the court
declared that the application of PIPA to the union's activities
The Supreme Court of Canada has now granted leave. It is
expected that there will be a number of parties seeking leave to
intervene in the appeal.
FMC is one of Canada's leading business and litigation law
firms with more than 500 lawyers in six full-service offices
located in the country's key business centres. We focus on
providing outstanding service and value to our clients, and we
strive to excel as a workplace of choice for our people. Regardless
of where you choose to do business in Canada, our strong team of
professionals possess knowledge and expertise on regional, national
and cross-border matters. FMC's well-earned reputation for
consistently delivering the highest quality legal services and
counsel to our clients is complemented by an ongoing commitment to
diversity and inclusion to broaden our insight and perspective on
our clients' needs. Visit:
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Employee turnover is an unavoidable reality for nearly all businesses. In addition to creating a number of financial and logistical difficulties, employee turnover also raises a number data security issues.
The Office of the Privacy Commissioner of Canada has ruled that the collection and use of a plaintiff's personal information for the purpose of defending against a civil lawsuit is not a "commercial activity" and, ...
While corporate executives are increasingly becoming aware of their obligation to be informed of cybersecurity threats and the steps being taken by their company to prevent data breaches, it is equally important for executives to ensure that the employees are educated with respect to cyber threats.
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).