Canada: Supreme Court Of Canada: Union's Freedom Of Expression Trumps Individual's Right To Privacy

Last Updated: December 30 2013
Article by Birch K. Miller

On November 15, 2013, the Supreme Court of Canada ("SCC") issued its decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62.

The decision weighs the privacy rights of individuals under Alberta's Personal Information Protection Act, S.A. 2003, c. P-6.5 ("PIPA")against a union's right to freedom of expression under the Canadian Charter of Rights and Freedoms (the "Charter").

The SCC tipped the scale in favour of the United Food and Commercial Workers Union, Local 401 (the "Union"), ruling that PIPA restricts a union's freedom of expression for labour relations purposes in a manner disproportionate to the government's objective of allowing individuals to control their personal information.


In 2006, employees of the Palace Casino in Edmonton, Alberta, engaged in a strike lasting 305 days. Both the Union and a security company hired by the employer videotaped and photographed the picket line near the main entrance to the casino. The Union posted signs in the area stating that the images of persons crossing the picket line might be placed on the website,

Individuals who were recorded crossing the picket line filed complaints with the Alberta Information and Privacy Commissioner under PIPA. PIPA governs the collection, use and disclosure of personal information by private sector organizations in Alberta. PIPA requires consent for the collection, use or disclosure of personal information except in certain specified circumstances (e.g., for journalistic purposes or for the purposes of an investigation or legal proceeding).

The Privacy Commissioner appointed an Adjudicator to determine whether the Union (in collecting, using and disclosing personal information about individuals without their consent) had contravened PIPA. The Adjudicator found that the Union's purposes promoted its objective of discouraging people from crossing the picket line and reaching a resolution to the labour dispute but ultimately concluded that PIPA did not authorize collection, use and disclosure of personal information for such purposes. The Union was ordered to cease its picket line footage (with the exception of any footage collected for an investigation or legal proceeding) and to destroy any personal information in its possession that had been obtained in contravention of the law.

The Union sought judicial review of the Adjudicator's order, arguing that PIPA infringed its right to freedom of expression under the Charter. The Chambers Judge agreed with the Union, concluding that PIPA's restrictions on the Union's collection, use and disclosure of "publicly available information" could not be justified.  

The Court of Appeal also agreed with the Union, concluding that PIPA is overly broad and an unjustifiable restraint of freedom of expression in the labour relations context.

Supreme Court of Canada Decision

The Supreme of Canada dismissed the Privacy Commissioner's appeal, finding PIPA unconstitutional.

While PIPA was recognized as having a pressing and substantial objective (providing individuals with control over their personal information), its restrictions on collection, use and disclosure were found to be overly broad:

PIPA limits the collection, use and disclosure of personal information other than with consent without regard for the nature of the personal information, the purpose for which it is collected, used or disclosed, and the situational context for that information.

The Court stressed the context of the case, pointing out that the personal information was collected by the Union at an open political demonstration where it was readily and publicly observable. The Court conceded that an individual does not automatically forfeit control over his or her personal information by appearing in public but concluded that PIPA's privacy protections unjustifiably restrict expression in the labour relations context, a matter of significant public interest and importance:

PIPA imposes restrictions on a union's ability to communicate and persuade the public of its cause, impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike. In our view this infringement of the right to freedom of expression is disproportionate to the government's object of providing individuals with control over personal information that they expose by crossing a picket line.

Rather than granting the union a constitutional exemption, the Court quashed the Adjudicator's order, and declared PIPA to be invalid, but suspended the declaration of invalidity for 12 months to give the Alberta legislature time to make PIPA constitutional.


It will be interesting to see how the Alberta legislature responds to this decision and how it will seek to strike a balance between individual privacy and freedom of expression in PIPA's next iteration. 

Will there be a new exemption narrowly focused on union and labour relations activities, in a manner similar to the carve out for the journalistic purposes, will there be a host of new exemptions covering various forms of expression, or will freedom of expression in whatever context eventually trump privacy rights in a much broader manner? The decision provided the Alberta government with little practical guidance on how PIPA could effectively be made constitutional, particularly considering the potential for rights to freedom of expression outside the union context.    

We note that the changes to PIPA required by the Supreme Court of Canada may also require a revisiting of other Canadian privacy legislation. In particular, the British Columbia Personal Information Protection Act, SBC 2003, c. 63, is highly similar to PIPA in its structure and application and contains similar restrictions on the collection, use and disclosure of personal information. Likewise, the decision of the SCC invites speculation as to whether the federal Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5. ("PIPEDA"),unduly restricts freedom of expression in certain "situational contexts". However, we note that the SCC did observe that PIPEDA was narrower than PIPA in so far as it pertains to personal information in the "commercial" context.

Finally, we note that the decision raises legitimate questions about the safety of employees who are not supporters of a strike. The Court explicitly permits — in fact, promotes — union "pressure" on individuals not to cross a picket line. The ruling clearly places a union's economic agenda ahead of both individual privacy and an individual's legal right to work during a strike. By glossing over what forms of "pressure" may be used by a union, the Court may be signalling tolerance of more coercive tactics by trade unions. In an era where legislatures and courts have properly begun to sanction harassment and bullying, this is surprising and worrisome.

While the Court does appear to caution that such pressure is permissible as long as it does not rise to the level of a tortious or criminal act, one questions whether the Court sufficiently considered individual employee rights to a safe workplace, rights afforded to management and union members alike. Use of the Vice-President's photos together with unwelcome personal comments, if not tortious in nature, would nevertheless have likely met the definition of "workplace harassment" both under the Ontario Occupational Health and Safety Act and Workplace BC's Policy "Employer Duties — Workplace Bullying and Harassment."  

As was initially noted by Rand J. in 1959, "a strike is not a tea-party" and that remains true as ever. However, the right to expression should not be permitted to undermine an employee's right to a safe workplace free from harassment.

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.

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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

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