Canada: Alberta Amends PIPA To Address Concerns Between Freedom Of Expression And Privacy – But Only During Labour Disputes

Alberta's amendments to the Personal Information Protection Act have narrowly addressed the Supreme Court of Canada's concerns about the appropriate balance between freedom of expression and rights to privacy, leaving a number of larger questions to another day.

Background

In 2006, union members were recorded and photographed by their union crossing the picket line during a strike at an Edmonton casino. A number of these members successfully complained to the Privacy Commissioner of Alberta (the Commissioner) that the union's actions contravened provisions of the Personal Information Protection Act1 (PIPA).

On judicial review, it was found that the legislation infringed the union's right to freedom of expression, which was protected under s. 2(b) of the Canadian Charter of Rights and Freedoms (the Charter).2

The constitutionality of PIPA proceeded to a hearing before the Supreme Court of Canada [read our update].3 During this hearing, the Commissioner and the attorney general of Alberta requested that if the court found portions of PIPA to be unconstitutional, it strike down the entire act and allow the Alberta legislature time to amend PIPA such that it did not infringe the Constitution. Upon concluding that the union's Charter s. 2(b) rights were unreasonably infringed, the court declared that PIPA was invalid. It suspended the invalidity for 12 months, or until November 15, 2014.4

While the Supreme Court of Canada's conclusions were specific to the labour context—a trade union using a picket line to express its labour rights—, in its reasons the court made comments that could have much broader application. For example, in discussing the balance between freedom of expression and protection of privacy, the court noted:

"The price PIPA exacts, however, is disproportionate to the benefits it promotes. 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. As the Adjudicator recognized in her decision, PIPA does not provide any way to accommodate the expressive purposes of unions engaged in lawful strikes. Indeed, the Act does not include any mechanisms by which a union's constitutional right to freedom of expression may be balanced with the interests protected by the legislation. As counsel for the Commissioner conceded during oral submissions, PIPA contains a general prohibition of the union's use of personal information (absent consent or deemed consent) to further its collective bargaining objectives. As a result, PIPA deems virtually all personal information to be protected regardless of context."5

The potentially broader application of the decision left Alberta with a number of options. Would it choose to amend PIPA to address the Supreme Court of Canada's reasons narrowly to a labour dispute situation, or more broadly to address other contexts where Charter s. 2(b) freedom of expression rights might conflict with privacy rights?

On November 18, 2014, the government of Alberta tabled Bill 3 – Personal Information Protection Amendment Act, 2014.6 The much-anticipated Bill 3 affirms the government chose to adopt the narrow approach to amending PIPA in light of the constitutional issues raised by the Supreme Court of Canada.

Bill 3 – the Personal Information Protection Amendment Act, 2014

What is perhaps most significant about Bill 3 is what it does not contain. Bill 3 does not address the interplay between Charter s. 2(b) freedom of expression and privacy outside of the labour context. Instead, the proposed amendments focus exclusively on the specific concerns noted by the Supreme Court of Canada in the context of a labour dispute.

The proposed amendments do not exclude labour disputes from the application of the act under Section 4 (like PIPA does for artistic, literary or journalistic purposes), but rather would allow a trade union under Sections 14 (14.1), 17 (17.1), and 20 (20.1) to collect, use and disclose personal information without the consent of the individual, provided certain very narrow prerequisites are met:

  1. the information is being collected, used and/or disclosed in the context of a labour dispute;
  2. the information is for the purpose of persuading the public about a matter of significant public interest and importance relating to a labour relations dispute involving the trade union; and
  3. the collection, use and/or disclosure of the personal information is reasonably necessary for the purpose of persuading the public about a matter of significant public interest and importance relating to a labour relations dispute.

Importantly, a trade union's collection, use and disclosure of personal information would thus, under Bill 3, remain subject to PIPA and a number of important provisions including: notifying the individual(s) whose information is being collected under Section 13; allowing the individual(s) access to the information under Section 24; allowing the individual(s) to correct the information under Section 25; protecting the information under Section 34 and retaining and destroying the information under Section 35.

The above prerequisites would certainly capture a trade union's right to picket the workplace, but parties to a labour dispute are left to speculate what might constitute a matter of significant public interest and importance and what is "reasonably necessary" for that purpose, beyond that expression.

Comment

Although it's business as usual for those not involved in a labour dispute, it is likely PIPA's constitutionality will again be judicially challenged. Regardless of the role the courts will have to play going forward, PIPA is scheduled to undergo a broader review beginning in July 2015. This upcoming review was cited by the Commissioner in a letter written to the ministers of justice and solicitor general and Service Alberta7 advocating for narrow amendments to PIPA and likely played into the government of Alberta's decision not to table a broader bill.

Bill 3 has thus left larger questions regarding the interplay between the constitutionally protected freedom of expression and the legislatively protected right to privacy to another day.

Footnotes

1 S.A. 2003, c. P-6.5.

2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

3 Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 2013 SCC 62 [SCC].

4 A motion was granted by the Supreme Court of Canada on October 30, 2014, to suspend the declaration of invalidity for a period of six months from the original deadline.

5 Ibid, at para 25.

6 Bill 3, Personal Information Protection Amendment Act, 2014, Third Session, 2014 (First Reading).

7 Letter from Jill Clayton, Information and Privacy Commissioner (December 20, 2013). Re: Personal Information Protection Act.

Norton Rose Fulbright Canada LLP

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