In Alberta (Information and Privacy Commissioner)
v United Food and Commercial Workers, Local 401, 2013 SCC
62, the Supreme Court of Canada ("SCC") struck down
Alberta's Personal Information Protection Act
("PIPA"). The SCC ruled that the limitations
that the law placed on union picket-line activities were a
violation of the UFCW's (the "Union") s.2(b)
Charter right of freedom of expression and the impact of
the violation was disproportionate and the infringement was not
justifiable under the s.1 reasonable limits clause of the
Charter. The declaration of invalidity was issued, in
part, at the request of both the Attorney General of Alberta and
the Information and Privacy Commissioner (the
"Commissioner") of Alberta, both of which claimed that
given the "comprehensive and integrated" nature of the
legislation, the entire statute should fall and be re-worked (para.
40). The Government of Alberta has been given 12 months to draft
constitutionally compliant legislation.
The legal dispute arose due to the Union's picket-line
activity of video-taping anyone who crossed the picket line at the
Palace Casino in Edmonton. The Union posted notices near the area
stating that anyone crossing the picket line would be video-taped
and/or photographed and that their photograph may be posted on a
public website for viewing. Three individuals complained to the
Commissioner. One such complainant was the Vice-President of the
Casino who claimed that pictures of him were used "on a poster
displayed at the picket line with the text: "This is [x's]
Police Mugshot" (para 5). Although no recordings were actually
posted online, the Union was ultimately ordered to stop the
video-taping and photography and to destroy any images or
recordings it had in its possession.
On judicial review, both the Court of Queen's Bench and the
Alberta Court of Appeal sided with the Union, finding that there
was a Charter violation and that violation could not be
saved by s.1 of the Charter. The SCC was called upon to
determine whether or not PIPA infringed on the Union's
s.2(b) right of freedom of expression and if so, whether the
infringement was justifiable. The SCC found that the type of
activity engaged in by the Union was protected by s.2(b) and the
impact of stop-order was disproportionate, having regard to the
overall benefits and protections offered to the general public by
PIPA. In siding with the Union, the SCC noted that the
information that was collected by the Union could easily have been
collected by anyone else, including journalists, given that the
picketing was "readily and publicly observable" for all
to see (para 26). Perhaps most importantly, the Court noted that
PIPA effectively prohibited the collection, use, or
disclosure of personal information for "many legitimate,
expressive purposes related to labour relations." (para 28).
The Court also noted that picketing is one of the most effective
tools that a union has in exerting economic pressure on the
employer and the effectiveness of this tool is "dependent on
the ability of a union to try to convince the public not to cross
the picket line and do business with the employer" (para
This decision may have a profound impact on the conduct of
lawful strikes in Alberta. The decision was 9-0 and adds a powerful
tool to a union's 'arsenal' during a strike. This
decision will be of specific interest to management and potential
replacement workers who intend on crossing the picket line during a
strike. However, it will also be of interest to the general public
who may also be subjected to recording, should they choose to visit
a business during a labour dispute where this kind of recording is
taking place. Given the declaration of invalidity, the Government
of Alberta has been given 12 months to draft new legislation and
PIPA should still be considered as legally in force until
the expiration of those 12 months or until it is repealed.
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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