Court of Appeal finds privacy statute restricts union’s freedom of expression
A recent decision by the Alberta Court of Appeal will not change the practice of unions and employers videotaping picket lines but it does raise some questions about the intersection of privacy and expression laws in Canada, according to Tom Ross, a partner with the Calgary firm McLennan Ross LLP.
The case involves people crossing a picket line at the Palace Casino at the West Edmonton Mall.
Union members, represented by the United Food and Commercial Workers (UFCW), and the employer both videotaped the picket line.
The union also posted a sign stating that images of people crossing the picket line might be placed on a website called “CasinoScabs.ca.”
Several people, including employees, officers of the employer and members of the public, filed complaints saying they had been recorded without their consent, although the union did not actually post their recordings on the website.
The union argued the province’s Personal Information Protection Act (PIPA) provides exceptions that allow non-governmental organizations, including trade unions, to collect, use and disclose personal information, including that used for “journalistic purposes” and information considered “publicly available.”
An adjudicator with the Office of the Privacy Commissioner rejected the first argument, saying the union had other purposes for collecting the information beyond journalism, and also held the union had not obtained consent simply by posting the sign.
The adjudicator did, however, accept that the union could collect personal information without consent on the picket line if it was to be used as evidence in a police investigation or in a court or labour board hearing.
The union was ordered to cease videotaping except for that purpose.
The union applied to the Alberta Court of Queen’s Bench for a judicial review, arguing those two exceptions violated its freedom of expression under the Charter of Rights and Freedoms.
The court agreed. A subsequent appeal by the complainants to the Alberta Court of Appeal also came to the same conclusion.
While the decision is unlikely to change the practice of videotaping picket lines, employers are concerned about the weight given by the court to freedom of expression, says Ross.
He questions how far that freedom could be extended.
“If they capture a vehicle’s license plate, can that be put on their website?” he asks. “Can they find the addresses of people who cross the picket line and post them online? How far can they go with expression?”
While the majority of labour disputes are peaceful, they all have the potential to become ugly with the potential for hostility and violence, he says.
“The potential for abuse is naturally a concern to employers,” he says. “Employers are particularly troubled that the freedom of expression not be improperly used to justify excesses that occur on the picket line, such as delaying or obstructing people who want to cross a picket line.”
The decision doesn’t condone the practice of recording on picket lines; however, it does suggest unions and employers need to be careful about how they use the information they collect there, according to Ryan Berger, a partner at the Vancouver firm Bull Housser.
“They should take care in providing some sort of notice and really think about how they’ll use that information in the end,” he says.
This case demonstrates the current legislation is both too broad in some circumstances and too narrow in others, Berger says, and underscores a sentiment held in several recent privacy decisions.
“People shouldn’t expect as much privacy in public places as they think they have,” he says, adding the court recognized there are grey areas in privacy legislation that need to be addressed at the political level.
While this case doesn’t represent a landmark decision, it is instructive, according to Michael Power, a Toronto-based lawyer who advises clients on privacy issues.
It makes the distinction between privacy statutes, such as PIPA, which define the obligations of organizations to protect people’s personal information and put limitations on the disclosure of that information — and the constitutional rights granted under the charter.
“When you look at the views of privacy advocates and privacy commissioners, they may issue findings with their own agenda, so they take an expansive view,” Power says. “The courts are more conservative and take more seriously the balancing the needs of the individual to protect personal information and businesses to use that information.”