In a landmark ruling, the Supreme Court of Canada has declared
Alberta's Personal Information Protection
Act (PIPA) to be invalid in its entirety, finding that it
infringes the freedom of expression guaranteed by the Canadian
Charter of Rights and Freedoms by limiting the ability of
labour unions to videotape and photograph individuals crossing a
The declaration of invalidity is suspended for a period of 12
months to give the legislature time to decide how best to make the
law constitutional. In light of the "comprehensive and
integrated structure" of the law, the Court decided to strike
PIPA down in its entirety, rather than declare as invalid
As we noted in a
previous post, the case considered complaints made by
individuals who were videotaped by the union as they crossed the
picket line in front of the casino. Like other Canadian
private sector privacy laws, Alberta's PIPA generally requires
the consent of individuals for the collection, use and disclosure
of their personal information, including videotaped images of
identifiable individuals. The union, which did not obtain
such consent, videotaped and photographed the picket lines in order
to publicize the images of individuals crossing the lines. An
Adjudicator for the Information and Privacy Commissioner of Alberta
found that the union had contravened the Act, and ordered the union
to stop such collection and destroy any personal information
obtained in breach of the Act.
The judgement focuses in particular on the breadth of PIPA,
which the Court found limits the non-consensual collection, use and
disclosure of personal information without regard for the nature of
the information, or the purpose or context for its collection, use
or disclosure. It is this approach, which the court found
"deems virtually all personal information to be protected
regardless of context," which resulted in a finding of a
Charter violation, since PIPA excludes any mechanisms by which a
union's constitutional right to freedom of expression may be
balanced with the privacy interests protected by the Act.
Moreover, the Court noted that picketing represents a
particularly crucial form of expression, and that the restrictions
imposed by the statute impaired the ability of the union to
communicate with and persuade the public, one of its most effective
bargaining strategies in the course of a lawful strike. As a
result, the Court found that the infringement of the freedom of
expression was not justified under s. 1 of the Charter.
The ruling will have significant implications for other private
sector privacy laws in Canada, and particularly with the existing
provincial privacy laws in British Columbia, Québec and
although the latter is not yet in force). Implications for
the federal law, the Personal Information Protection and Electronic
Documents Act, which applies in the remaining provinces, are
less clear, since the federal applies to the collection of personal
information from the public only in the course of commercial
activities, which would not appear to include the activities of a
union during a labour dispute.
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