Privacy Laws Are Too Broad – Alberta Statute Ruled Unconstitutional

In a significant decision affecting the permissible scope of protection under Canada's private sector privacy laws,1 the Supreme Court of Canada has determined that, in a labour relations context, the Alberta Personal Information Protection Act ("PIPA") infringes the constitutional right to freedom of expression under the Canadian Charter of Rights and Freedoms and therefore must be struck down. The Court delayed making its order operative for a period of 12 months, thereby permitting the Legislature to amend PIPA so that it does not offend the Charter. In other words, Alberta still has a privacy law, and will continue to do so provided that its scope is narrowed so as not to offend the constitutional right to freedom of expression.

The significance of this court decision is potentially far-reaching. Firstly, the Alberta PIPA is almost identical to the British Columbia private sector privacy law and is similar in many respects to both the federal law, the Personal Information Protection and Electronic Documents Act ("PIPEDA"), and the Quebec Private Sector Privacy Act.2 Therefore, the Court's indicated limitation on the permissible scope of privacy laws - that they may not infringe the constitutional right to freedom of expression - is likely to apply to those laws as well.

More importantly, the Court suggests that the all-encompassing scope of privacy protection stipulated by the privacy laws is overbroad and should be subject to limitations. The Court considered some of the limitations contained within the express content of the laws, but found them wanting.

The specific facts of the case involved a strike at the Palace Casino in Edmonton. The union, and the employer, videotaped persons crossing the union's picket line, apparently a common practice in Alberta. As among other uses of the videotape, the union threatened to post images of those crossing the picket line on a website called "casinoscabs.ca" Certain of the individuals who were videotaped filed complaints with the lberta Information and Privacy Commissioner to the effect that such recording and potential uses of their images contravened PIPA.

The Adjudicator appointed by the Commissioner concluded that PIPA applied and prohibited the subject activity. The Adjudicator did not have the power to determine the constitutionality of the law and did not address this issue. However on judicial review of her decision and on the subsequent appeal to the Alberta Court of Appeal, the...