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.
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