Canada: Don't Expect Privacy On The Picket Line, Supreme Court Warns

On November 15, 2013, the Supreme Court of Canada released its decision in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401¹. Since leave to appeal was granted in October 2012, the decision has been anticipated in the hope it would clarify the permissibility of the increasingly common tactic of filming picket lines and also clarify the balance between restrictions under privacy legislation and the freedom of expression protection in the Canadian Charter of Rights and Freedoms.

Facts and previous decisions

The Supreme Court substantially dismissed the appeal of Alberta's Information and Privacy Commissioner. The decision under appeal was the Alberta Court of Appeal's holding that the Alberta Personal Information Protection Act² violated freedom of expression as protected by s. 2(b) of the Charter. The dispute arose during a legal strike at West Edmonton Mall's Palace Casino. A notice was posted on the picket line warning that photographs of those who crossed may be posted on a website called "casinoscabs.ca." An image of the employer's vice-president was depicted as a "mug shot" and included as part of the union's strike campaign materials.

The vice-president and others complained to Alberta's Office of the Information and Privacy Commissioner. An OIPC adjudicator appointed found that the collection, use and disclosure of the photographs violated PIPA.³ The union successfully applied for judicial review. The Alberta Court of Queen's Bench found the union's expressive activity protected by s. 2(b) and its limitation as unjustified.⁴ Dismissing the attorney general's appeal, the Alberta Court of Appeal expanded on the lower court's reasoning.⁵ Characterizing PIPA as overly broad, the Court of Appeal found the right of striking workers to communicate to the public outweighed the minor intrusion into privacy in a public place.

The Supreme Court judgment

Under PIPA, the union was prohibited from collecting, using or disclosing personal information without consent. The statute created no exemption for expression for the purpose of advancing a party's interests in a labour dispute. In unanimous reasons written by Justices Abella and Cromwell, the prohibition was found to violate s. 2(b). The bulk of the court's analysis hinged on whether the prohibition was saved under s. 1 of the Charter as a reasonable limit, demonstrably justified in a free and democratic society.

The Supreme Court acknowledged the importance of protecting privacy in a vibrant democracy and modern society in which technology is enhancing the ability of organizations to collect personal information. Ultimately, though, the court found PIPA's broad limitations disproportionate to the benefit gained if individuals could control the personal information they expose when crossing a picket line. The statute lacked a mechanism for balancing the constitutional freedom of expression with privacy interests. Specifically, it failed to provide any way to accommodate the union's expressive rights.

Implicit in the reasons was a finding that the intrusion into personal privacy was minor. The court noted that the information was collected at a public, observable and open demonstration and was limited to images of individuals crossing a picket line, people who would have reasonably expected their images to be captured by others such as journalists.

PIPA's restrictions interfered with the "expression of views on matters of significant public interest and importance."⁶ The court cited the historical recognition of the fundamental importance of free expression to labour disputes, expression which itself is related to the freedom of association protected by s. 2(d) of the Charter. The court saw this free expression playing a role in alleviating the presumptive imbalance between employer and the individual worker and in fostering public debate on labour issues. Picketing itself was described as "a particularly crucial form of expression with strong historical roots" and the picket line as an "invaluable tool in the economic arsenal of workers in the collective bargaining process."⁷

At the requests of the OIPC and the attorney general, the court declared the entire statute invalid rather than selectively striking out specific provisions. The declaration of invalidity was suspended for 12 months to allow the Alberta legislature time to remedy the legislation's unconstitutionality.

Comment

Canada's unions will undoubtedly celebrate this judgment as confirmation by Canada's highest court of the fundamental importance of picketing activities. This decision clearly constitutes a victory for legitimate group labour relations activities over general protections of individuals' personal information. Battles will continue to be waged over exactly which activities fall under the banner of "legitimate" for labour relations purposes. The Supreme Court expressly declined to consider that question, finding it unnecessary to scrutinize all of the union's expressive activities.

Still to be resolved is the reconciling of PIPA to codify the constitutionally required balance. Alberta's response, whether through creating new narrow exemptions from privacy rules for labour relations activities or by substantially reworking PIPA, will be closely watched. While PIPA is drafted in considerably broader terms than the federal privacy legislation or that of some other provinces, the decision will have implications for other Canadian privacy legislation, particularly where privacy rights collide with fundamental rights such as freedom of expression. Private sector companies can expect other jurisdictions to follow suit in amending their own private sector privacy statutes.

Footnotes

¹ 2013 SCC 62 [SCC].

² S.A. 2003, c. P-6.5 [PIPA].

³ Order P2008-008, 2009 CanLII 90942.

⁴ 2011 ABQB 415.

⁵ 2012 ABCA 130.

⁶ SCC, supra note 1 at para. 27.

⁷ Ibid. at para 35.

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