Northern Exposure

Individual privacy rights trumped by union’s freedom of expression

By Lorene Novakowski and Brandon Wiebe

On November 15, 2013, the Supreme Court of Canada ruled that a union’s right to collect, use, and disclose personal information for legitimate labor relations purposes outweighs an individual’s right to privacy. In so doing, it declared Alberta’s Personal Information Protection Act (PIPA) unconstitutional but suspended the declaration for one year to allow the Alberta legislature time to cure the statute.


In 2006, unionized employees at the Palace Casino in Edmonton, Alberta, went on strike. During the lawful strike, both their union— the United Food and Commercial Workers, Local 401—and a security company hired by the employer videotaped and photographed the picket line near the entrance to the casino. The union posted signs in the area stating that images captured of persons crossing the picket line might be posted on a website.

Several individuals who were recorded crossing the picket line complained to the Alberta Information and Privacy Commissioner under the PIPA about the union’s activity.

Decision history

An adjudicator appointed by the Alberta Information and Privacy Commissioner concluded that the union’s collection, use, and disclosure of private information wasn’t authorized by the PIPA. The union was ordered to stop collecting the personal information except for the purposes of possible investigations or legal proceedings.

On judicial review to the Alberta Court of Queen’s Bench, the chambers judge found that the union’s activity had expressive content; was protected activity under subsection 2(b) of the Canadian Charter of Rights and Freedoms; and the breach of this right could not be justified under section 1.

On appeal, the Alberta Court of Appeal granted the union a constitutional exemption from the application of the PIPA. The court measured the restraint of expression against the utility of labor relations and collective bargaining activities, concluding that the privacy interest was minor compared with the right of workers to engage in collective bargaining and of the union to communicate with the public.

Supreme Court of Canada decision

At issue in the Supreme Court was whether the PIPA achieved a constitutionally acceptable balance between personal privacy interests and a union’s freedom of expression.

A unanimous court agreed with the lower courts that the union’s collection, use, and disclosure of personal information in the context of picketing during a lawful strike was inherently expressive activity protected by subsection 2(b) of the charter. The infringement on the union’s right to collect, use, and disclose this personal information wasn’t justified because the limitations on expression were disproportionate to the benefits that the legislation sought to promote.

There were two factors critical to the court’s finding:

  • First, the scope of the PIPA is unnecessarily broad. It contains a general prohibition against collecting, using, and disclosing personal information unless there is an exemption or the consent of the individual. Because there is no exemption for labor relations activity and the court has long recognized the fundamental importance of freedom of expression in the context of labor disputes, this doomed the legislation.
  • Secondly, the court considered the context of the information collected. It was collected at a picket line open to the public. People would expect that if journalists were there capturing images for the news that their image might similarly be displayed. The captured personal information was limited to images of individuals crossing the picket line and didn’t include intimate biographical details or the person’s lifestyle or personal choices. Although the court recognized that a person doesn’t automatically forfeit his or her interest in his or her personal information simply by appearing in public, the context of legitimate labor relations activity limits the extent to which a person can seek to control dissemination of personal information.

Takeaway for employers

It remains to be seen whether the Alberta legislature will attempt to limit the amendments just to an exception for labor relations activity or undertake a broader review of the legislation. The Alberta and the British Columbia privacy commissioners, who also intervened in the case, strongly took the position that the court failed to understand the definition of personal information in the legislation, treating it instead as an issue of privacy versus publicly available information. The privacy commissioners have been very clear that the legislation contemplates the protection of personal information, not necessarily invoking the concept of privacy.

Further, the federal Personal Information Protection and Electronic Documents Act and the Alberta and British Columbia Personal Information Protection Acts were drafted to be substantially similar to the European Union Data Protection Directive—so that Canadians could ensure free flow of data out of Europe into Canada. Wholesale amendments to the legislation may result in a fresh determination of whether the legislation still meets the test of being substantially similar.

It will also be interesting to see if the British Columbia, federal, and Alberta commissioners work together on any amendments that they make to their respective legislation. It also should be noted that this case is about privacy; rules regarding illegal activity on picket lines are unaffected by the judgment.

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