SCC Declares Alberta’s Personal Information Protection Act Invalid

On November 15, 2013, the Supreme Court of Canada (SCC) released its decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 declaring Alberta's Personal Information Protection Act (PIPA) invalid on the basis that it infringes the right to freedom of expression enshrined in the Canadian Charter of Rights and Freedoms . The SCC suspended the declaration of invalidity for twelve months to allow the Alberta Legislature time to revise PIPA.

The case originally arose in October and November of 2006 when several individuals complained to the Information and Privacy Commissioner of Alberta after they had each been recorded and/or photographed crossing a picket line during a strike. United Food and Commercial Workers, Local 401 (the "Union") members had recorded and photographed individuals crossing its picket line during a strike, but had also posted signs in the area stating that images of persons crossing the picket line might be placed on a website.

Alberta's Office of the Information and Privacy Commissioner issued an order on March 30, 2008 (ORDER P2008-008) in which the Adjudicator found that the Union's actions were not authorized under PIPA for any of the purposes of collection provided by the Union other than the purpose of gathering evidence. The Adjudicator stated that a party must ensure that use or disclosure of information collected for the "evidence-gathering" purpose must not be used for any other purpose and further found the Union's collection of information for other purposes was not done with consent and was not otherwise authorized by the Act. The Union sought judicial review of the order, and the case made its way up to the SCC. (Read about the previous decisions here)

The SCC examined whether PIPA has a constitutionally acceptable balance between the interests of individuals in protecting their personal information and the Union's freedom of expression. Ultimately, the SCC held that PIPA violates S. 2(b) of the Charter because it disproportionately impacts freedom of expression in the labour context and that infringement is not justified under the Charter . At the request of the Information and Privacy Commissioner of Alberta and the Attorney General of Alberta, the SCC agreed to strike down PIPA in its entirety rather than ordering specific amendments, so as to allow the Alberta Legislature to consider amendments to PIPA as a whole.

The SCC found that PIPA...