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, casinoscabs.ca.
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.
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