SCC Strikes Down Alberta Privacy Legislation On Speech Grounds

This morning, the Supreme Court of Canada released Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, an important decision relating to the intersection of freedom of expression and protection of privacy and, in the process, struck down Alberta's Personal Information Protection Act, SA 2003, c. P-6.5 ( "PIPA"). At issue were the privacy rights created by the PIPA and the right to free expression, which is constitutionally enshrined as section 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter").

The case arose from a strike in 2006, at the Palace Casino in Edmonton. Both the union and the employer videotaped the picket line, which was located in a shopping mall. The evidence on record suggests that recording picket lines was standard practice in Alberta at the time. The union posted notices at the site that recordings of people crossing the picket line might be posted to a web site.

Certain individuals, including officers of the employer, employees, and other members of the public, filed complaints with Alberta's Information and Privacy Commissioner, under PIPA. The record indicates that the complainants were recorded crossing the picket line, but that no such recordings of any of the complainants were ever posted on the web site.

The Adjudicator concluded that the union did not have the right to collect and use the recordings. The union applied for judicial review and the chambers judge struck down certain portions of PIPA. [United Food and Commercial Workers, Local 401 v Alberta (Information and Privacy Commissioner), 2011 ABQB 415.] The Alberta Court of Appeal upheld the conclusion that portions of the Act were unconstitutional. [United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130.]

At its heart, the case raises two issues relating to the nature and scope of privacy protection: one is whether it matters that the information was collected in a "public" place; the other is whether it matters that the union's use of the information had an expressive purpose.

The Court of Appeal engaged with both, finding that the union's purpose was legitimate expression, protected by the Charter, and that PIPA's failure to differentiate information which was "personal" but not "private" contributed to its over-reach. At paragraph 77, the Court of Appeal drew a series of important conclusions that were not limited to the labour setting, but...