December 12, 2013
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The recent Supreme Court of Canada (SCC) decision, Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 is an important decision that balances individual privacy rights protected under provincial legislation against a union’s right to freedom of expression during a lawful strike.

The union in this case, which represented employees of a casino at the West Edmonton Mall, recorded and photographed individuals crossing its picket line during a lengthy strike in 2006. Interestingly, the union had posted signs in the area stating that images of people crossing the line might be posted online.

Several people whose images were captured filed successful complaints with the Information and Privacy Commissioner of Alberta that the union’s activities contravened the province’s Personal Information Protection Act (“PIPA”). The Adjudicator concluded that the collection, use and disclosure of personal information by the union was for an expressive purpose, in order to achieve a resolution to the labour dispute, but that PIPA did not authorize the use of personal information for that purpose. An important limitation on the Commission in this case was its inability to decide questions of constitutional law as a result of Alberta’s Administrative Procedures and Jurisdiction Act.

In response, the union made an application for judicial review of the Commissioner’s findings on the basis that PIPA infringed the union’s right to freedom of expression under s. 2(b) of the Charter and that this infringement could not be justified under s. 1. The trial judge found that the union’s activity was expressive content that PIPA directly limited the union’s freedom of expression by preventing it from using personal information obtained in a public location, and that the breach could not be justified.

The Alberta Court of Appeal also considered whether it was justifiable to restrain expression in support of collective bargaining activities, and concluded that PIPA was overbroad. The Court found that the privacy interest at stake was minor since the complainants were in a public place and there was notice that images were being collected. The Court agreed with the trial judge that there was a breach of s. 2(b) that could not be saved under s. 1 and granted the union a constitutional exemption from the application of PIPA.

The Supreme Court also agreed with the finding that PIPA limited expressive activity protected under s. 2(b) of the Charter. Labour disputes, the Court noted, are of significant public interest and have an important impact on the Canadian economy. Picketing is one of the most effective strategies for unions to help facilitate a settlement by imposing legitimate economic pressure on an employer when collective bargaining breaks down. The Court identified a number of valid purposes for using personal information during picketing, including:

  • Deterring people from crossing a picket line and putting pressure on those who cross
  • Making the public aware of a labour dispute and increasing support for the union
  • Redressing the economic power imbalance between employers and individual workers
  • Bringing labour conditions to the public’s attention for discussion and debate

The Supreme Court found that the scope of PIPA was considerably broader than that of federal privacy legislation, the Personal Information and Protection of Electronic Documents Act (PIPEDA). Unlike PIPEDA, PIPA’s limitations were not restricted to commercial activities. Instead, PIPA restricted the use of personal information by a broad range of organizations, including trade unions. While the breadth of PIPA was mitigated by a series of exemptions, none of these exemptions allowed a union to use personal information without consent during in a labour dispute.

While the Court was careful to note that its decision did not condone all of the union's activities, the court left no doubt that picket line activity is typically expressive in nature and worthy of constitutional protection. The court also pointed out that privacy interests must be considered alongside freedom of expression in order to strike an "appropriate balance" between the two.

In the course of its s. 1 analysis, the Court found that PIPA's provisions were rationally connected to the pressing and substantial objective of enhancing an individual's control over their personal information. The broad restrictions imposed by PIPA were not justified however, because they were disproportionate to the benefits promoted, and without regard for context. In particular, PIPA failed to provide any balancing mechanisms to accommodate the expressive purposes of unions engaged in lawful strikes. The Court also considered the extent to which the privacy rights of those crossing the picket line were actually impaired, and determined it was minimal. It could reasonably be expected that videos and photographs might be taken in a public location, and the information collected was unlikely to be sensitive.

The Supreme Court noted that, "like privacy, freedom of expression is not an absolute value and both the nature of the privacy interests implicated and the nature of the expression must be considered in striking an appropriate balance." It substantially dismissed the appeal with costs to the Union, quashing the Adjudicator's order and declaring PIPA to be invalid, although it suspended the declaration for 12 months.

This case is important both to the labour community and for its impact on privacy legislation across Canada. The decision does provide unions with considerable leeway in the use of personal information collected as part of picket line activity.  However, picket lines are not the only expressive conduct implicated by privacy legislation. Privacy legislation that does not include provisions permitting a balance between the competing constitutional rights of freedom of expression and privacy is vulnerable to court challenge and, likely, is being reviewed by Parliament or the applicable provincial legislature.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law