Alberta’s Personal Information Protection Act Declared Invalid by the Supreme Court of Canada

In a decision written by Abella and Cromwell JJ., the Court was asked to determine whether Alberta’s Personal Information Protection Act¹ (“PIPA”) infringes a union’s right to freedom of expression. In order to do that, it was required to determine whether PIPA strikes an appropriate balance between individuals’ right to control the dissemination of personal information about themselves and the union’s freedom of expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).

Facts 

During a lawful strike lasting 305 days involving the employees of the Palace Casino at West Edmonton Mall, the union and a security company hired by the employer filmed and photographed the picketline and individuals attempting to cross it. To warn individuals crossing the picketline, the union had posted signs informing them that their photographs might appear on its website.

Three complaints were filed with the Alberta Information and Privacy Commissioner (the “Commissioner”) after the photographs and videos were published. The Vice-President of the Casino complained that his photograph was used on a number of posters that read “This is [x’s] Police Mugshot” and on leaflets containing humorous slogans. A member of the public filed a complaint because he had been filmed where he regularly met friends near the picketline. A third person complained that she had been filmed while working near the Casino entrance.

Previous decisions 

The Commissioner received the complaints and assigned them to an Adjudicator to decide whether the Union, in collecting, using and disclosing personal information about third parties without first obtaining their consent, had contravened PIPA. The Adjudicator concluded that it had and ordered the Union to destroy any personal information in its possession because it held the information in contravention of the Act.

The judge who first reviewed the Adjudicator’s decision and the Court of Appeal reached substantially the same conclusion and found that PIPA violated the Union’s freedom of expression, a right guaranteed by section 2(b) of the Charter. In concrete terms, since the Union’s activity had expressive content, PIPA, by controlling and depriving the Union of that freedom of expression, violated the Charter right. Moreover, both the judge in chambers and the Court of Appeal concluded that the breach could not be justified under section 1 of the Charter. 

Analysis and discussion by the Supreme Court

The Court determined that there were two main questions in issue.

First, it asked whether PIPA and the regulations made under it violate the rights guaranteed by section 2(b) of the Charter by limiting a union’s right to collect, use or disclose personal information without consent during the course of a lawful strike. 

Second, if so, it would have to determine whether the infringement was a reasonable limit, which can be justified in a free and democratic society under section 1 of the Charter.

Do PIPA and the regulations made under it violate the charter?

The Court began by stating that the collection, disclosure and use of personal information about people approaching a picketline during a lawful strike are an avenue by which the Union engaged in expression. In other words, the activities and methods used by the Union in this context fall within its freedom of expression, a right protected by the Charter. 

The Court was also of the opinion that the actual purpose of disseminating the images was to dissuade people from crossing the picketline and, incidentally, to inform the public in order to persuade it to support the Union in its pressure tactics. 

In the circumstances, because the Union’s activities did not constitute an exception provided in PIPA, the Court found that the practical effects of PIPA were to deprive the Union of its right to collect, use and disclose the personal information of individuals who approached the picketline. 

The Court was therefore of the opinion that the direct effect of PIPA was to infringe the Union’s right to freedom of expression and thus to violate the Charter. 

Having answered the first question in the affirmative, it then had to answer the second question. 

Is the infringement justified under section 1 of the charter? 

The Court examined the two major elements of this question. First, it considered whether PIPA serves a pressing and substantial objective. Second, if so, it had to determine “whether its provisions are rationally connected to that objective, whether it impairs the right to freedom of expression no more than is necessary, and whether its effects are proportionate to the government’s objective”.² 

On the first element, the Court immediately concluded that PIPA has a pressing and substantial objective, since individuals’ control over the dissemination of their personal information is directly connected to their individual autonomy, dignity and privacy. The importance of that objective cannot, therefore, be questioned because of the importance that our society assigns to those rights. 

On the second element, however, the Court was of the opinion that PIPA’s limitations are disproportionate to its benefits: while it does protect privacy on an individual basis, it provides no exception to protect the Union’s freedom of expression or, alternatively, to balance the two rights. The Court also pointed out that the Act does not take into account the context in which the personal information was collected, used or disclosed. 

The Court also stressed the context in which the infringement took place. It described a picketline as a public place where individuals should reasonably have expected to be photographed by journalists, for example. 

The Supreme Court was also satisfied that history has demonstrated the genuine importance of freedom of expression as a strategic tool in a difficult labour relations context. The Court added that freedom of expression can redress the imbalance of power between employer and employees. 

In short, the Charter violation cannot be justified under section 1, since the restriction imposed by PIPA on the Union’s right to communicate with the public or to prepare a strategy during a lawful strike is too onerous. 

Conclusion 

In addition to infringing the Union’s right to freedom of expression, which the Court recognized to be crucial, and thus violating the Charter, PIPA interferes with labour relations and causes repercussions in that regard that cannot be justified under section 1. 

While the Court expanded the limits of the Union’s freedom of expression, it left a small opening and perhaps a limit on that freedom, when it stated: “This conclusion does not require that we condone all of the Union’s activities.”³ 

It remains to be seen how the courts will interpret and address the inherent limits on unions’ freedom of expression at the expense of individuals’ privacy interests.

¹ PIPA was inspired by the Personal Information Protection and Electronic Documents Act, and both recognize that individuals must have broad control over the dissemination of their personal information and must therefore give their consent in order for such use to be permitted.
² At paragraph 18 of the decision.
³ At paragraph 38 of the decision.