Canada: SCC Declares Alberta's Personal Information Protection Act Invalid

On November 15, 2013, the Supreme Court of Canada (SCC) released its decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 declaring Alberta's Personal Information Protection Act (PIPA) invalid on the basis that it infringes the right to freedom of expression enshrined in the Canadian Charter of Rights and Freedoms . The SCC suspended the declaration of invalidity for twelve months to allow the Alberta Legislature time to revise PIPA.

The case originally arose in October and November of 2006 when several individuals complained to the Information and Privacy Commissioner of Alberta after they had each been recorded and/or photographed crossing a picket line during a strike. United Food and Commercial Workers, Local 401 (the "Union") members had recorded and photographed individuals crossing its picket line during a strike, but had also posted signs in the area stating that images of persons crossing the picket line might be placed on a website.

Alberta's Office of the Information and Privacy Commissioner issued an order on March 30, 2008 (ORDER P2008-008) in which the Adjudicator found that the Union's actions were not authorized under PIPA for any of the purposes of collection provided by the Union other than the purpose of gathering evidence. The Adjudicator stated that a party must ensure that use or disclosure of information collected for the "evidence-gathering" purpose must not be used for any other purpose and further found the Union's collection of information for other purposes was not done with consent and was not otherwise authorized by the Act. The Union sought judicial review of the order, and the case made its way up to the SCC. (Read about the previous decisions here)

The SCC examined whether PIPA has a constitutionally acceptable balance between the interests of individuals in protecting their personal information and the Union's freedom of expression. Ultimately, the SCC held that PIPA violates S. 2(b) of the Charter because it disproportionately impacts freedom of expression in the labour context and that infringement is not justified under the Charter . At the request of the Information and Privacy Commissioner of Alberta and the Attorney General of Alberta, the SCC agreed to strike down PIPA in its entirety rather than ordering specific amendments, so as to allow the Alberta Legislature to consider amendments to PIPA as a whole.

The SCC found that PIPA restricts freedom of expression in that it does not allow the Union to collect, use or disclose personal information in order to advance the Union's interests in a labour dispute. One of the Union's main purposes for collecting personal information during picketing was to discourage individuals from crossing the picket line and encourage individuals to support the Union, which is an inherently expressive activity restricted by PIPA. The SCC went on to state that this broad limit of freedom of expression is "... not demonstrably justified because its limitations on expression are disproportionate to the benefits the legislation seeks to promote." [at paragraph 19] The SCC further states that PIPA's restrictions impair a union's ability to use an effective bargaining strategy during the course of a strike. The SCC also notes that the personal information collected in this case was not extremely sensitive information, suggesting that the impact on the individual was not as significant as it would be if more sensitive information were in question. Therefore, in the balance of interests, the impact on the Union was unjustifiably greater than the impact on the individuals.

This decision will force the Alberta Legislature to review and update PIPA to ensure that an individual's right to protection of his or her personal information under PIPA is more proportionate to the rights of organizations to engage in expressive activities. This will also give the Alberta Legislature the opportunity to consider other recommendations for changes to PIPA that have been made by various parties over the years. The full impact of the changes Alberta's Legislature decides to make to PIPA will not be known until such updates are released. It also has yet to be determined what impact, if any, this decision will have on other privacy legislation in Canada.

For the time being, organizations in Alberta should ensure they have privacy policies and practices in place that are compliant with the current version of PIPA and watch for updates in the year to come that may require changes to such policies and practices.

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