Earlier today, the Supreme Court of Canada found Alberta's Personal Information Protection Act ("PIPA") to be unconstitutional because it does not strike an acceptable balance between the interests of individuals in controlling the collection, use, and disclosure of their personal information with a union's freedom of expression. The Court has provided the Legislature twelve months to make appropriate amendments to ensure PIPA is constitutionally compliant.
The decision arises from the actions of the UFCW during a lawful strike at the Palace Casino in West Edmonton Mall in 2006. The Union collected photographs and video footage of individuals crossing its picket line. The images were used on posters, union newsletters, and strike leaflets.
Several individuals filed complaints with the Alberta Information and Privacy Commissioner on the grounds that the collection and use of their images violated the protections established by PIPA. An adjudicator concluded that the union's collection, use, and disclosure was not authorized by PIPA. The Union challenged the adjudicator's findings on the grounds that PIPA unjustifiably limited its right to freedom of expression under the Charter of Rights and Freedoms.
The Alberta Court of Queen's Bench and the Alberta Court of Appeal agreed with the Union's submissions and found that Alberta's privacy laws can not prohibit a union from disclosing photographs of picket line activities when attempting to persuade others to support its strike. Alberta appealed to the Supreme Court.
The Supreme Court of Canada dismissed Alberta's appeal and struck down PIPA on the basis that the legislation does not include any exemptions or mechanisms to protect the Union's constitutional right to freedom of expression in the context of labour disputes. More specifically, the Court found PIPA disproportionately impairs a Union's ability to communicate with the public and persuade the public of its cause, which is one of its most effective bargaining strategies.
Employers should expect unions to continue to collect and distribute personal information during labour disputes for the purpose of communicating with the public and its members. This personal information may include photographs and video of management, replacement workers and customers who cross the picket lines. This, of course, does not give unions free rein to say or do whatever they like. Defamation laws, the Labour Relations Code (e.g., improper intimidation), and the Criminal Code (e.g., uttering threats) continue to apply. This law also gives employers the same freedom to collect and post video images of picket line activity.
We expect the Government of Alberta to review PIPA in its entirety as a result of this decision. The review may result in substantive changes to Alberta's privacy legislation in the months ahead. Employers should closely monitor future developments in this area to ensure their practices remain compliant with Alberta's privacy laws.
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