Privacy & Information Security Law Blog

On November 15, 2013, the Supreme Court of Canada declared the Alberta Personal Information Protection Act (“PIPA”) invalid because the legislation interfered with the right to freedom of expression in the labor context under Section 2(b) of the Canadian Charter of Rights and Freedoms (the “Canadian Charter”). The case arose in the context of a labor union representing employees of a casino in Alberta. During a lawful strike, the union recorded and photographed individuals crossing the union’s picket line near the main entrance of the casino. The union had posted a sign that the images of persons crossing the picket line might be placed on a website. A number of individuals who were recorded crossing the picket line filed complaints under PIPA with the Alberta Information and Privacy Commissioner, who appointed an adjudicator to determine whether the union had contravened PIPA by collecting and disclosing personal information about individuals without their consent. Under PIPA, organizations cannot collect, use or disclose personal information without the individual’s consent, unless an exception applies.

The adjudicator concluded that there were no provisions of PIPA that authorized the union’s collection, use and disclosure of personal information. The adjudicator ordered the union to destroy the personal information it had gathered and stop collecting the personal information for any purposes other than a possible investigation or legal proceeding. The adjudicator’s decision was then submitted for judicial review to the chambers judge and to the Court of Appeal. The Court of Appeal agreed with the chambers judge that the union’s activities violated the freedom of expression guaranteed under Section 2(b) of the Canadian Charter and could not be saved under Section 1 of the Charter. The union was granted a constitutional exemption from the application of PIPA.

The Supreme Court of Canada agreed with the lower courts’ decisions and ruled that PIPA violates the freedom of expression in the context of a lawful strike under Section 2(b) of the Canadian Charter. The Supreme Court of Canada noted that “[i]n 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 picket line.” At the request of the Alberta Information and Privacy Commissioner and the Government of Alberta, the Supreme Court of Canada declared invalid the entire statute (as opposed to select sections) so that the Alberta legislature could reconsider PIPA as a whole. The Supreme Court of Canada suspended the declaration of invalidity for a period of 12 months to allow the legislature to determine how to make the legislation constitutionally compliant.