As I wrote in this Blog on June 6, 2012, in a post entitled Is Alberta's PIPA Constitutional?, http://carswellprivacylaw.wordpress.com/2012/06/06/is-albertas-pipa-constitutional-2/ in a recent ruling of the Alberta Court of Appeal in United Food and Commercial Workers, Local 401 v. Alberta (Attorney General) 2012 ABCA 130 http://carswellprivacylaw.wordpress.com/2012/06/06/is-albertas-pipa-constitutional-2/ the Court concluded that the Personal Information Protection Act (Alberta) [http://laws-lois.justice.gc.ca/eng/acts/P-8.6/index.html] ("PIPA") had not been drafted in a manner that is "adequately sensitive to protect Charter Rights".
The case arose from complaints filed with the Alberta Privacy Commissioner in 2006 by members of the public and employees and officers of Palace Casino in Edmonton after they were recorded by the United Food and Commercial Workers Union (the "Union") crossing picket lines during a strike at the Casino. After an inquiry, an adjudicator determined that the Union did not have the right to rely on the journalistic purposes exception in the PIPA to collect and use the information without consent, as the information was not used only for journalistic purposes. The Union sought judicial review of the decision, arguing that the adjudicator's interpretation of PIPA violated its constitutional rights to freedom of expression under the Charter.
The Court concluded that the PIPA was overbroad in its application and took issue with the narrow definition of publicly available information and the lack of exemptions for information collected and used for expression. The Court also decried the absence of an exception for information that is personal but not at all private, and the lack of exemptions allowing organizations to use personal information that is reasonably required in the legitimate operation of their business. While the Court stopped short of striking down Alberta's privacy legislation or suggesting specific changes to the legislation it did raise significant issues for resolution.
The Alberta Privacy Commissioner sought leave to appeal the decision to the Supreme Court of Canada and that leave was granted late last month. This case will, no doubt, be keenly followed by the privacy commissioners in the various provinces and others, and it may be expected that there will be numerous interveners in the case due to the potential significance of its outcome not only to Alberta but to the entire country.
We will continue to monitor the case and provide updates in this Blog as more information becomes available.
Originally published November 8, 2012
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