Canada: Privacy Laws Are Too Broad – Alberta Statute Ruled Unconstitutional

Last Updated: November 22 2013
Article by David Young and Éloïse Gratton

In a significant decision affecting the permissible scope of protection under Canada's private sector privacy laws,1 the Supreme Court of Canada has determined that, in a labour relations context, the Alberta Personal Information Protection Act ("PIPA") infringes the constitutional right to freedom of expression under the Canadian Charter of Rights and Freedoms and therefore must be struck down. The Court delayed making its order operative for a period of 12 months, thereby permitting the Legislature to amend PIPA so that it does not offend the Charter. In other words, Alberta still has a privacy law, and will continue to do so provided that its scope is narrowed so as not to offend the constitutional right to freedom of expression.

The significance of this court decision is potentially far-reaching. Firstly, the Alberta PIPA is almost identical to the British Columbia private sector privacy law and is similar in many respects to both the federal law, the Personal Information Protection and Electronic Documents Act ("PIPEDA"), and the Quebec Private Sector Privacy Act.2 Therefore, the Court's indicated limitation on the permissible scope of privacy laws – that they may not infringe the constitutional right to freedom of expression – is likely to apply to those laws as well.

More importantly, the Court suggests that the all-encompassing scope of privacy protection stipulated by the privacy laws is overbroad and should be subject to limitations. The Court considered some of the limitations contained within the express content of the laws, but found them wanting.

The specific facts of the case involved a strike at the Palace Casino in Edmonton. The union, and the employer, videotaped persons crossing the union's picket line, apparently a common practice in Alberta. As among other uses of the videotape, the union threatened to post images of those crossing the picket line on a website called "" Certain of the individuals who were videotaped filed complaints with the lberta Information and Privacy Commissioner to the effect that such recording and potential uses of their images contravened PIPA.

The Adjudicator appointed by the Commissioner concluded that PIPA applied and prohibited the subject activity. The Adjudicator did not have the power to determine the constitutionality of the law and did not address this issue. However on judicial review of her decision and on the subsequent appeal to the Alberta Court of Appeal, the Adjudicator's decision was quashed and the Act's application to the subject activities was ruled unconstitutional.

Both the Adjudicator and each of the courts hearing the case considered various potentially applicable exceptions under the law which either would have narrowed its application to not include the videotaping, or would have avoided the need for the individuals' consent to their being videotaped. In all instances the exceptions were found not to apply (or to have only limited application). The Supreme Court focussed less on the potential applicability of exceptions than on the overall thrust of the law; however the fact that none of the potential exceptions applied was considered as a critical element in the Court's concluding that the law, as a restriction on freedom of expression, could not be saved by the Charter's s.1 caveat permitting reasonable limitations in a just and democratic society.

All of the courts as well as the Adjudicator accepted that the videotaping was for an "expressive purpose" – namely to inform the public and dissuade people from crossing the picket line. In considering the constitutional issue, the courts recognized that this was an activity protected by the Charter's s.2(b) right to freedom of expression and that PIPA limits this activity. They then turned to s.1 of the Charter to determine whether the limitation was saved if it could be characterized as a reasonable limit demonstrably justified in a free and democratic society. In coming to the conclusion that the benefits of the law do not outweigh its costs in terms of limiting freedom of expression, the Court conducted an insightful analysis of both the origins of our modern privacy laws as well as their breadth.

Origin of the privacy laws

The Court noted that the origin and purpose of the laws are focused in the international movement, arising in the 1970s, towards giving individuals "better control over their personal information", particularly in the context of the potential of automated technologies to amass and store huge quantities of data.3 The policy response, which became embodied in European and international standards and, ultimately, the Canadian private sector privacy laws, was to provide individuals with some measure control over their information. The Court noted, correctly, that the legislation enacted to address this policy requirement was very broad:

  • the definition of "personal information" is practically unqualified – "information about an identifiable individual";
  • the laws apply to all "organizations" (broadly defined), noting that, unlike PIPEDA, PIPA, extends to organizations' non-commercial activities;
  • the exceptions to the laws' otherwise broad scope were very limited; in particular the scope for publicly available information, for which collection does not require consent, was narrowly and specifically defined (essentially that in telephone and business directories, public registries and printed public media).

Policy behind breadth of the laws

By way of comment, it is noted that in the early policy deliberations that led to the "Fair Information Principles" ("FIPs") as ultimately embodied in the laws, distinctions among characteristics in the nature of personal information – such as between sensitive and non-sensitive, and private and public – were rejected, there being a sense that the only feasible definition was any information which relates to any data subject who is, or can be identified. The breadth of the protection was initially motivated by the data processing potential of the emerging technologies, as well as the fact that the risks involved with the new databases were difficult to assess. The concepts embodied in the FIPs were also meant to remain relevant even in the face of continuous technological improvements – all leading to the adoption of a very broad definition of personal information. A broad definition is reflected in earlier judicial decisions4 and is consistent with the perspective of the federal Office of the Privacy Commissioner which indicates that "a broad definition is in order".5 Information will be "about" an individual when it is not just the subject of that individual but also when it relates to or concerns the individual. The result of this approach may be that the definition becomes so broad that almost any information can qualify as personal.

However, as the UFCW case suggests, while the right to privacy is very important, the broad notion of privacy as "control over personal information" – the origin of the FIPs and the modern privacy laws – not only protects the privacy of individuals but also inhibits the circulation of any kind of personal information. The concept ignores the flow of data for society as a whole, or legitimate reasons for organizations collecting, using or disclosing personal information, such as may be protected under the Charter's freedom of expression right as, in the UFCW case, was applied to the union's videotaping of strike-breakers.

Of course, the modern privacy laws are not absolute in their protective application but are subject to both exceptions from their scope – as specified exclusions from the application of the laws – and exceptions to the consent requirement.

The court's conclusions

The courts in UFCW examined these exceptions, but found them inadequate to offset the broad scope and application of PIPA sufficiently to enable it to stand. Exceptions to the scope of the law– in particular the journalism exception - and the "investigation" exception to the consent requirement, which the union sought to rely on, were addressed. The Supreme Court did not focus its analysis on whether – or how – these exceptions could be interpreted, or adjusted, to save the law. It did however address the fact that the privacy laws contain a very limited definition of publicly available information, with the result that virtually all personal information is protected, regardless of context. Against this concern, the Court weighed in the balance the need for individuals to maintain substantial control over their personal information even when exposed in public – and cited the capacity of developing technologies to amass and store information indefinitely as evidence of this need.

However the Court, in the specific context of a union's imperative to express its view on matters of significant public interest and importance (a strike), concluded that PIPA's "deleterious effects" in that context outweigh the benefits of the collection, use and disclosure of personal information "for many legitimate, expressive purposes related to labour relations" (such as ensuring safety of union members, attempting to influence the public, and bringing debate on the labour conditions with an employer into the public realm.

In sum, the Court concluded that PIPA's restrictions constitute an infringement of the union's freedom of expression that are disproportionate to the legislative objective of providing individuals with control over their personal information that they expose when crossing a picket line.

The Supreme Court's decision in the UFCW case is in many respects fact-specific: PIPA infringes on a union's constitutional right of freedom of expression, particularly in the collective bargaining context. However its impact is far more wide-reaching. The Court finds that PIPA, and by implication other Canadian private sector privacy laws, are subject to and must be limited in their application so as to comply with that right. Furthermore, the currently-held understanding of the breadth of scope of such laws will need to be reassessed and that scope narrowed to permit a wider unrestricted use of information in the public domain, particularly where that information is used to express views on matters of significant public interest and importance.

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

2 It is also similar to the recently passed Manitoba Personal Information Protection and Identity Theft Prevention Act, which has not yet been proclaimed

3 Citing: Eloise Gratton, Understanding Personal Information: Managing Privacy Risks (LexisNexis, 2013) pp 6-13.

4 Canada (Information Commissioner) v Canada (Transportation Accident Investigation and Safety Board), 2006 FCA 157 (CanLII); Dagg v Canada (Minister of Finance), [1997] 2 SCR 403; Wyndowe v Rousseau 2008 FCA 39 (CanLII). 5

 See for example, "A Privacy Handbook for Lawyers – PIPEDA and Your Practice" (Office of the Privacy Commissioner, 2011).

See the upcoming Privacy and Data Protection seminar hosted by McMillan and Lexpert to be held on December 09, 2013.  Go here for registration and details.

The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.

© Copyright 2013 McMillan LLP

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.