Canada: Supreme Court Of Canada Upholds Union’s Right To Freedom Of Expression

Last Updated: December 6 2013
Article by Albert Nolette

As noted in our latest Privacy Press update, recently the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, determined that Alberta's Personal Information Protection Act  (the "PIPA") unjustifiably limits a union's right to freedom of expression in the context of a lawful strike.

The Supreme Court struck down the PIPA  legislation in its entirety, albeit with a year reprieve to allow Alberta to adapt the legislation. In addition to the privacy issues and impacts identified in Field Law's previous update, it is important to also be aware of the importance of the decision and its reasoning relating to the rights of unions and employers. The Supreme Court sent a clear message to lawmakers across the country that a union's right to freedom of expression in the context of a lawful strike, although not absolute, must be preserved when enacting laws seeking to provide individuals control over their personal information.

The case arose in 2006 when the United Food and Commercial Workers, Local 401 (the "Union") representing employees at a Casino in Edmonton began recording and photographing individuals crossing the picket line in the midst of a 305 day labour dispute. Signs posted by the Union where the picketing occurred stated that photographed and video images of individuals crossing the picket line might be posted on the internet. Although no images were published online, several individuals whose images were recorded or photographed by the Union filed complaints with the Alberta Information and Privacy Commissioner under PIPA. The employer's Vice President also filed a complaint after images of him were used on a poster at the picket line and in Union leaflets and newsletters, accompanied with captions intended to be humorous.

An adjudicator appointed by the Commissioner decided that by collecting, using and disclosing personal information about individuals without their consent, the Union had contravened PIPA. In deciding this, the adjudicator rejected the Union's argument that the information collected and used by the Union was covered by the "journalistic purposes" exemption in PIPA. The Union applied to the Court of Queen's Bench for judicial review of the adjudicator's decision arguing that by preventing the Union from collecting, using and disclosing personal information obtained from its lawful picketline, PIPA violated its Charter protected freedom of expression and that such a violation could not be justified. The Court of Queen's Bench found (and the Court of Appeal of Alberta agreed) that there was a violation of the Union's Charter  protected freedom of expression that could not be justified.

In a unanimous decision, the Supreme Court of Canada also concluded that PIPA  violated the Union's Charter protected freedom of expression by restricting the Union's ability to collect, use or disclose personal information during the course of a lawful strike, and that such an infringement could not be justified in a free and democratic society. In its reasons, the Court began by concluding without difficulty that PIPA restricted the Union's freedom of expression. The Court then moved on to determine if the violation could be justified. Although the Court found that PIPA  served a pressing and substantial objective in providing individuals some measure of control over their personal information, the Court concluded that the limits imposed by PIPA  were disproportionate to the benefits it promoted.

In its analysis, the Court stressed the importance of freedom of expression in labour disputes. Notably, the Court explained that:

  • expressive activity in the labour context is directly related to the Charter  protected right of workers to associate to further common workplace goals under s. 2(d) of the Charter;
  • a person's employment and the conditions of their workplace can inform their identity, emotional health, and sense of self-worth;
  • it is through their expressive activities that unions are able to articulate and promote their common interests, and, in the event of a labour dispute, to attempt to persuade the employer;
  • in the labour context, freedom of expression can enhance broader societal interests;
  • the free flow of expression by unions and their members during a labour dispute plays an important role in bringing issues relating to labour conditions into the public arena for discussion and debate; and
  • picketing is a form of expression that has strong historical roots, as strikes and picketlines have been used by Canadian unions to exert economic pressure and bargain with employers for over a century.

Accordingly, the Court concluded that by imposing restrictions on the Union's ability to communicate and persuade the public of its cause, PIPA impaired the Union of its ability to use one of its most effective bargaining strategies in the course of a lawful strike. This infringement of the Union's right to freedom of expression was found to be disproportionate to the government's objective of providing individuals with control over personal information that they expose by crossing a picketline. To the extent that PIPA  restricted the Union's collection, use and disclosure of personal information for legitimate labour relations purposes, the legislation violated the Union's freedom of expression, and could not be justified. The Court noted, however, that its conclusion would not condone all of a union's activities. Just like privacy, freedom of expression is not an absolute value and the nature of the interests concerned must be considered in striking an appropriate balance.

For these reasons and given the comprehensive and integrated structure of the statute, the Supreme Court of Canada ordered that PIPA should be struck down in its entirety. However, it is worth noting that the Court suspended the declaration of invalidity for a period of one year to give the Alberta legislature time to render PIPA  constitutional or to adopt a new law.

This is a very important decision for unions and employers for obvious reasons. It is also significant for any party dealing with a PIPA  complaint, and advice should be sought as to whether and how this decision affects you. Field Law's Labour and Employment and Privacy Practice Groups are here to assist you and your organization with all strategic and practical matters arising from these issues.

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.

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.

Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
McCarthy Tétrault LLP
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions