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 PIPA. 

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.