The Supreme Court of Canada has unanimously struck down
Alberta's Personal Information Protection Act (PIPA):
2013 SCC 62. The Alberta law is very similar to the BC
In this case which we have been following (see the background
here), the Alberta Court of Appeal had already quashed a
Privacy Commissioner's Order prohibiting the UFCW from
collecting and using video for any purpose other than evidence
gathering. The Supreme Court of Canada agreed, and found recording
and use or distribution of video was an expressive activity. The
lack of exemptions permitting unions to collect, use and disclose
personal information for the purpose of advancing its interests in
a labour dispute were unconstitutional and unjustified restrictions
on the Charter right of freedom of expression.
What are the implications?
The Supreme Court suspended the declaration striking down the
Alberta law for 12 months to allow the legislature time to decide
how to make it constitutional. In their submissions, the
lawyers representing the Government of Alberta asked the high Court
to strike down the entire law, rather than strike out certain
portions so that the Government could create a fresh draft. As
such, we anticipate Alberta will develop and table a substantially
similar new law in 2014.
In BC, the law still stands, however, our Privacy Commissioner
has issued a statement that given the similarity between the two
pieces of legislation, she looks forward to discussions with the BC
government on how to balance PIPA's vital privacy protections
with freedom of expression.
There is some prospect that new versions of the law will address
the definitions of personal information in a new way, and balance
privacy protection rights in a way that does not inhibit the
collection and circulation of any kind of personal information,
particularly expressive communications. We will all have to
wait and see.
Since the laws still stand and all indications are that they
will get "updates" given the SCC decision, private sector
organizations in BC and Alberta should continue to observe their
privacy obligations. Notwithstanding this case and the state
of the legislation, privacy continues to be a developing area and
strong privacy management and accountability continues to be a
growing expectation in the law generally, as a risk reduction
matter, as well as sound business practice.
This case is a victory for unions, and to some degree employers,
in that they have greater latitude to collect photographs and video
of picketing activities for the general purposes of expression,
including the promotion of the employer's or employees'
interests in a labour dispute. The case is also being hailed
as a victory for privacy advocates as the SCC took the opportunity
to affirm the fundamental social and legal value of privacy.
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.
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