Canada: Freedom Of Expression Trumps Privacy Rights As The SCC Brings The Charter Hammer Down On Alberta’s Privacy Statute

Last Updated: November 19 2013
Article by Justin H. Nasseri

Most Read Contributor in Canada, September 2018


In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 ["United Food"], the Supreme Court of Canada has unanimously decided that Alberta's Personal Information Protection Act ["PIPA"] unjustifiably limits a union's right to freedom of expression in the context of a lawful strike. The judgment, delivered by Cromwell and Abella JJ. concluded that:

[37] PIPA imposes restrictions on a union's ability to communicate and persuade the public of its cause, impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike. In our view, this infringement of the right to freedom of expression is disproportionate to the government's objective of providing individuals with control over personal information that they expose by crossing a picketline.

The Supreme Court consequently declared that PIPA is invalid, but has suspended this declaration for 12 months to allow the Alberta legislature time to make the legislation constitutional.

Background and Decisions Below

This case arose from a labour dispute in which the Union, United Food and Commercial Workers, Local 401, was recording and photographing individuals crossing its picketline and using these images on signs and other materials for the dispute. Several of the individuals complained to Alberta's Information and Privacy Commissioner, arguing that the collection and use of these images and videos violated PIPA. Except in very narrow circumstances, PIPA states at section 7(1) that an organization shall not collect, use, or disclose personal information about an individual without their consent. An Adjudicator for the Privacy Commissioner consequently ordered the Union to stop collecting the personal information for any purpose other than a possible legal proceeding, and to destroy any personal information it collected in contravention of PIPA.

On judicial review, the Union persuaded the chambers judge that its activities had expressive content protected by the right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. Her Honour found that PIPA infringed this right by preventing the Union from collecting, using, and disclosing personal information obtained by individuals in public view, and that the breach could not justified under s. 1 of the Charter.

The Alberta Court of Appeal agreed with the chambers judge that that PIPA breached s. 2(b) of the Charter and could not be saved by s. 1, and granted the Union a constitutional exemption from PIPA.


The Supreme Court assessed whether PIPA and its regulations violated s. 2(b) of the Charter by restricting a union's ability to collect, use or disclose personal information during a lawful strike; and whether the infringement could be justified pursuant to s. 1 of the Charter.

Since collecting, using, and disclosing personal information in the context of a lawful strike was inherently expressive, the Court found that s. 2(b) of the Charter was clearly engaged. PIPA is fairly broad in its prohibition on the collection, use, or disclosure of personal information without consent, and the Union's activities did not fall under the exemptions in the Act, relating to information being collected, used, or disclosed for artistic or journalistic purposes, or for an investigation or legal proceeding. The Court therefore concluded that PIPA restricted freedom of expression and engaged in a s. 1 analysis, where the Court assessed whether (i) PIPA services a pressing and substantial objective, (ii) the provisions at issue are rationally connected to that objective; (iii) whether PIPA impairs the right to freedom of expression no more than is necessary; and whether its effects are proportionate to the government's objective.

PIPA's objective of governing the collection, use and disclosure of personal information by organizations with regard to both their need to do so and an individual's right to have her or his personal information protected was found to clearly be pressing and substantial. The provisions at issue clearly related to the statute's objective. Furthermore, the Court recognized the significance and beneficial effects of PIPA's goal in an age where technology allows for large scale collection, analysis, and communication of people's personal information. Providing individuals with control over their personal information "is intimately connected to individual autonomy, dignity and privacy, self-evidently significant social values."

Nevertheless, the Court ruled that PIPA's detrimental effects were disproportionate to its benefits, as its restrictions failed to factor the nature of the personal information being collected, the purpose for its collection, use, or disclosure, and the situational context for this information. The Court assessed the specific context of this case and found that people crossing a picketline in a union dispute "would reasonably expect that their image could be caught and disseminated by others," and that the information in this case comprised of images, not biographical or intimate details.

The Court found that expressive activity in a labour dispute directly related to the s. 2(d) Charter right of workers to associate to further common workplace goals. It held that free expression in a labour context could alleviate the power imbalance between employer and worker, allow unions to communicate their interests, and serve a broader societal interest in terms of bringing labour issues into the public arena for discussion and debate. With respect to the union's picketline activities in this case, the Court ruled that the "imposition of public or economic pressure has come to be accepted as a legitimate price to pay to encourage the parties to resolve their dispute," and that a union may achieve its goals by pressuring persons who cross the picketline.

Potential Significance

This case highlights the Supreme Court's strong emphasis on the right to freedom of expression, particularly in the labour relations context. It went at length to list and describe the value and importance of unions having broad expression rights in labour disputes. Any employers engaged in bargaining disputes with unions would be well advised to notify personnel approaching or crossing picketlines that they may be photographed or videotaped, and that the union may be able to make broad use of these images. In this particular case, photos of one individual crossing the picketline were used on a poster at the picketline with the text "This is [individual's] Police Mugshot", and images of his head were used in union newsletters and strike leaflets. Although the Supreme Court did not necessarily "condone all of the Union's activities," the Court did not examine the precise expressive activity at issue in this case.

The Court did note that "like privacy, freedom of expression is not an absolute value and both the nature of the privacy interests implicated and the nature of the expression must be considered in striking an appropriate balance." Furthermore, it ruled that in so far as PIPA sought to safeguard informational privacy, it is "quasi-constitutional" in nature, and that the "importance of the protection of privacy in a vibrant democracy cannot be overstated." Consequently, this decision should not be taken as a blanket allowance for unions to collect any personal information on picketline crosers or to make any use or disclosure of it. The Court's recognition of the importance and quasi-constitutional nature of protecting privacy leaves the door open to future privacy-based challenges to the collection, use, or disclosure of personal information in a labour dispute. For example, using the Court's contextual analysis, if the nature of the information collected by a union was intimate, or contained biographical detail, or violated someone's reasonable expectation of privacy, these considerations may potentially outweigh any freedom of expression right. Given the Court's recognition of the link between privacy rights and the autonomy and dignity of the individual, it is possible that situations where the nature or use of the personal information collected would compromise an individual's safety and privacy to a sufficient extent that freedom of expression would no longer prevail.

This decision is also significant in that it may affect other privacy statutes, such as the federal Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 ("PIPEDA"), currently being used by the rest of Canada with the exception of Quebec and British Columbia. As the Supreme Court noted, PIPEDA is much less restrictive than PIPA, since its limitations on the collection, use, and disclosure of personal information are limited to activities undertaken for commercial purposes. PIPA, on the other hand, applied to any corporation unincorporated association, trade union, partnership, or an individual in a commercial capacity. Since the Governor General in Council has previously determined that PIPA provides comparable privacy protection, Alberta has been exempt from PIPEDA.

Whether or not this decision will affect PIPEDA or other privacy statutes significantly, by provoking s. 2(b) Charter challenges to these laws is yet to be seen. The Court was careful to focus its decision on the context at hand, namely, that of a labour dispute and the importance of unions being able to exercise their right to free expression. As noted in the decision, PIPA applies to a far broader set of situations than PIPEDA, which is focused on activities undertaken for commercial purposes. Nevertheless, PIPEDA's definition of "personal information" mirrors PIPA's, as "information about an identifiable individual". Under PIPEDA, organizations cannot collect, use, or disclose personal information for commercial purposes without consent except for a series of exceptions. It is conceivable that on the Court's reasoning, any litigation, based on privacy statutes like PIPEDA, opposing the collection of personal information could trigger a s. 2(b) challenge to these privacy laws. However, the merits of a s. 2(b) challenge to an act like PIPEDA would greatly depend on the purpose for which the information was being collected, used or disclosed. The values in protecting a union's expression rights in the precise context of a labour dispute were paramount in the Court's Charter analysis and ultimate conclusion in this case. In many other contexts, a limitation on expressive rights may be justified given the privacy interests at stake.

For a helpful commentary on this case and its implications on privacy laws around Canada, including the interplay between this decision and the forthcoming CASL anti-spam legislation, see

Case Information

Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62

Case Docket: 34890

Date of Decision: November 15, 2013

to view original article, please click here

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

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
Field LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
Field LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions