Earlier today, the Supreme Court of Canada found Alberta's
Personal Information Protection Act
("PIPA") to be unconstitutional because it does
not strike an acceptable balance between the interests of
individuals in controlling the collection, use, and disclosure of
their personal information with a union's freedom of
expression. The Court has provided the Legislature twelve months to
make appropriate amendments to ensure PIPA is
The decision arises from the actions of the UFCW during a lawful
strike at the Palace Casino in West Edmonton Mall in 2006. The
Union collected photographs and video footage of individuals
crossing its picket line. The images were used on posters, union
newsletters, and strike leaflets.
Several individuals filed complaints with the Alberta
Information and Privacy Commissioner on the grounds that the
collection and use of their images violated the protections
established by PIPA. An adjudicator concluded that the
union's collection, use, and disclosure was not authorized by
PIPA. The Union challenged the adjudicator's findings
on the grounds that PIPA unjustifiably limited its right
to freedom of expression under the Charter of Rights and
The Alberta Court of Queen's Bench and the Alberta Court of
Appeal agreed with the Union's submissions and found that
Alberta's privacy laws can not prohibit a union from disclosing
photographs of picket line activities when attempting to persuade
others to support its strike. Alberta appealed to the Supreme
The Supreme Court of Canada dismissed Alberta's appeal and
struck down PIPA on the basis that the legislation does
not include any exemptions or mechanisms to protect the Union's
constitutional right to freedom of expression in the context of
labour disputes. More specifically, the Court found PIPA
disproportionately impairs a Union's ability to communicate
with the public and persuade the public of its cause, which is one
of its most effective bargaining strategies.
Employers should expect unions to continue to collect and
distribute personal information during labour disputes for the
purpose of communicating with the public and its members. This
personal information may include photographs and video of
management, replacement workers and customers who cross the picket
lines. This, of course, does not give unions free rein to say or do
whatever they like. Defamation laws, the Labour Relations
Code (e.g., improper intimidation), and the Criminal
Code (e.g., uttering threats) continue to apply. This law also
gives employers the same freedom to collect and post video images
of picket line activity.
We expect the Government of Alberta to review PIPA in
its entirety as a result of this decision. The review may result in
substantive changes to Alberta's privacy legislation in the
months ahead. Employers should closely monitor future developments
in this area to ensure their practices remain compliant with
Alberta's privacy laws.
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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