The Respondent, a labour union representing employees at an Edmonton casino during the course of a lawful strike, had run afoul of Alberta’s Personal Information Protection Act by videotaping individuals crossing the picket line during the strike, and using the images collected in union newsletters, strike leaflets, and a website called CasinoScabs.ca.
An Adjudicator appointed by the Alberta Information and Privacy Commissioner determined that the Act had been breached, and ordered the union to cease collecting personal information, and to destroy any personal information in its possession at that time.
On judicial review, the Alberta Court of Queen’s Bench concluded that Alberta’s privacy legislation breached the union’s right to freedom of expression pursuant to Section 2(b) of the Charter of Rights and Freedoms. This conclusion was upheld by the Alberta Court of Appeal.
The Supreme Court of Canada agreed that the Personal Information Protection Act limited expressive activity on the part of the union and therefore breached Section 2(b) of the Charter. In determining whether the legislation could be upheld as a “reasonable limit” to freedom of expression under Section 1 of the Charter, the Supreme Court recognized that the Act had a pressing and substantial objective, but found that its effect in limiting freedom of expression was disproportionate to that objective:
“[25] The price PIPA exacts, however, is disproportionate to the benefits it promotes. PIPA limits the collection, use and disclosure of personal information other than with consent without regard for the nature of the personal information, the purpose for which it is collected, used or disclosed, and the situational context for that information. As the Adjudicator recognized in her decision, 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. As counsel for the Commissioner conceded during oral submissions, PIPA contains a general prohibition of the Union’s use of personal information (absent consent or deemed consent) to further its collective bargaining objectives. As a result, PIPA deems virtually all personal information to be protected regardless of context.”
To support this conclusion, the Court pointed to need for labour unions to engage in expressive activity as a means of winning public support for their cause:
“[37] 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.”
The Court concluded by declaring PIPA as a whole unconstitutional and quashing the Adjudicator’s order, but providing the Province of Alberta with 12 months to amend PIPA to bring it into compliance with Section 2(b) of the Charter.
Decided by the Supreme Court of Canada on November 15, 2013.
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