Alberta’s privacy law unconstitutional

Supreme Court ruled law violated union's right to freedom of expression
By Liz Foster
|Canadian HR Reporter|Last Updated: 12/16/2013

Following a Supreme Court of Canada ruling, the Alberta government is working to strike a balance between the right to privacy and the right to freedom of expression.

The Supreme Court found Alberta’s Personal Information Privacy Act (PIPA) violated a union’s right to free expression. A nine-member panel unanimously ruled the privacy legislation was unconstitutional, saying it violated the United Food and Commercial Workers (UFCW) Local 401’s right to free speech by blocking its ability to photograph and film workers crossing a picket line.

The picket line was part of a 305-day strike at the Palace Casino in the West Edmonton Mall in 2006. Local 401 and management hired a security firm to film and photograph the picket line and posted signs warning images of workers crossing the picket line could be posted online.

Complaints were made to Alberta’s privacy commissioner, Jill Clayton, and many of them cited PIPA. Clayton appointed an adjudicator who ruled the union was in violation of the privacy act. The case went on to the Alberta Court of Appeal and then the Supreme Court, where the legislation was ruled unconstitutional.

PIPA established that, as a general rule, organizations cannot collect, use or disclose personal information without consent. But PIPA does not include any mechanisms that balance a union’s right to free expression in the context of labour disputes, found the court.

Alberta now has one year to make changes to PIPA to bring it in line with the constitution.

“The court clearly recognized the importance of strikes as an expression of the democratic rights of workers. And they also made it clear that striking workers have a constitutionally protected right not only to engage in strikes but to use strikes as a platform to persuade both employers and the broader public of their issues and concerns,” said Gil McGowan, president of the Alberta Federation of Labour.

In its ruling, the court referenced the strong historical roots of picketing in labour disputes and the crucial role personal information can play in legitimate, expressive purposes related to labour relations.

The ruling was an emphatic one that demonstrates strong support for unions, said McGowan. While the Alberta Federation of Labour supports many provisions of PIPA, he said, privacy rights cannot be used to silence workers during strikes.

The fact that the legislation was ruled unconstitutional shows how flawed the privacy act is, said McGowan.

“What the court was saying in this decision is the Alberta government didn’t just get it wrong, they got it badly wrong. They’re basically saying this piece of legislation was so deeply flawed that you have to go back to the drawing board.”

Court documents show both the provincial government and Clayton’s office requested the entire statute be declared invalid so PIPA could be considered as a whole. Gwen Gray — one of the union’s legal representatives during the case — said the act is difficult to dissect.

“The act is pretty tightly interwoven and you can’t really pick out one section that you could amend easily to fix it.”

One option is to alter PIPA so it only applies to commercial activities, said Gray. Clayton said her office is considering the court’s ruling before making a submission to the government.

Clayton’s submission to the province should encourage the government to move quickly to make the necessary adjustments, she said.

“The legislation is scheduled for a review in 2015,” said Clayton. “Twelve months is not a lot of time to make changes. At this point, my preference is that we focus on addressing the concerns the court has pointed out to us rather than opening it up for a wholesale review.”

While the Supreme Court’s ruling emphasized the right to freedom of expression, the court also recognized the importance of privacy, she said.

“Decisions like this help us to establish the scope and boundaries of the legislation,” said Clayton. “We have some direction in the context of this particular case on how to balance freedom of expression with privacy values. These are two very important values — I don’t think this will be the last case where these values come up against each other.”

Liz Foster is a news editor with Canadian Labour Reporter, a sister publication to Canadian HR Reporter. For more information, visit www.labour-reporter.com.

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