Canada: Alberta’s PIPA Amendments: Much Ado About Nothing?

Last Updated: January 26 2015
Article by Roland Hung

Most Read Contributor in Canada, September 2018

Just in time for the new year, Alberta's Personal Information Protection Act (PIPA) was amended by Bill 3, which came into force on  December 17, 2014. The amendments were in response to the Supreme Court of Canada's decision to strike down PIPA in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401,1. on the basis that it infringed on the union's freedom of expression.

Background

The case arose from a strike in 2006, at the Palace Casino in Edmonton. Both the union and the employer videotaped the picket line, which was located in a shopping mall. The evidence on record suggests that videotaping picket lines was standard practice in Alberta at the time. The union posted notices at the site that recordings of people crossing the picket line might be posted to a website.

Certain individuals, including officers of the employer, employees and other members of the public, filed complaints with Alberta's Information and Privacy Commissioner under PIPA. The record indicates that the complainants were videotaped crossing the picket line, but that no such recordings of any of the complainants were ever posted on the website. The Adjudicator concluded that the union did not have the right to collect and use the recordings.

The SCC decision found as follows:

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 objective of providing individuals with control over personal information that they expose by crossing a picketline.2.

The Court accepted that both the collection and the use of the information had protected expressive purposes. The union's purpose was to persuade people to support the union and to deter people from crossing its picket line by using the recordings.

The core of the ruling is the finding that "PIPA deems virtually all personal information to be protected regardless of context." PIPA was unconstitutional for the following reason:

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.3.

Amendments

Bill 3 amends PIPA slightly to provide that during lawful labour disputes, a union is no longer required to obtain consent in order to collect, use, or disclose personal information, so long as the following conditions are met:

  1. collecting, using, or disclosing the personal information is for the purpose of informing or persuading the public about a matter of significant public interest or importance relating to a labour relations dispute;
  2. collecting, using, or disclosing the personal information is reasonably necessary for that purpose; and
  3. the collection, use, or disclosure of the personal information without consent is reasonable in its situation context, taking into account all relevant considerations, including the nature and sensitivity of the personal information.

Significance

The long-term issue arising from the United Food decision is how the decision will affect the other privacy statutes in Canada. It must be remembered that all general privacy legislation throughout Canada is structured on a sweeping definition of "personal information" that encompasses almost any information about an identifiable individual, although some of the statutes do make certain exceptions. As a result, all privacy legislation in Canada begins, in varying degrees, with a premise recognized by the Federal Court of Appeal and Supreme Court to be overbroad. It remains to be seen whether the federal and other provincial privacy legislation will adopt similar amendments to those in Bill 3.

Footnotes

[1] 2013 SCC 62 (United Food).

[2] United Food, para. 37.

[3] United Food, para. 25.

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