In this case, the Alberta Court of Appeal considered whether certain provisions of the Personal Information Protection Act (PIPA) were in violation of section 2(b) of the Canadian Charter of Rights and Freedoms. The issue arose in the context of a labour dispute, during which the union videotaped persons crossing the picket line. The persons who were videotaped then filed complaints with the privacy commissioner under the PIPA, arguing that the union's recording of the picket line was in violation of their privacy rights. While the Court acknowledged the importance of protecting individuals’ privacy rights and limiting the misuse of personal information, it held that the union’s freedom to record the picket line should be protected as an expressive right under the Charter, and should trump any statutory privacy rights provided under PIPA.
Based on the Supreme Court of Canada decision in Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd, 2002 SCC 8, Justice Slatter noted that picketing itself is an expressive activity and is limited by the Act. Further, according to R v. National Post, 2010 SCC 16, the freedom of expression in section 2 of the Charter encompasses an ability to collect information for the purpose of expressing a certain view. The Court found that recording the picket line has an expressive purpose, as persuading people to think or act in a certain way is a direct purpose of free expression. Consequently, the union was able to establish a prima facie breach of its section 2 Charter right.
Justice Slatter further held that PIPA’s effect on the union’s expressive rights was not justifiable under section 1 of the Charter. The Act failed the proportionality test, since it is overbroad and not adequately sensitive to the protection of Charter rights. He identified five problems with the Act:
(i) The definition of “personal information” is defined too broadly;
(ii) There is no general exception for information that is personal, but not at all private;
(iii) The definition of “publicly available information” is artificially narrow;
(iv) There is no general exemption for information collected and used for free expression; and
(v) There is no exemption allowing organization to reasonably use personal information that is reasonably required in the legitimate operation of their business.
Justice Slatter also found that it is not apparent that the salutary effects of the Act outweigh its deleterious effects.
Since it is possible that all of the impugned provisions of PIPA might have a constitutional application in some cases, the Court was reluctant to strike down the Act entirely. Instead, the Court issued a declaration that the application of PIPA to the activities of the union was unconstitutional, and deferred to the legislature to make the appropriate amendments to the Act. The Alberta Information and Privacy Commissioner has sought leave to appeal the Alberta Court of Appeal’s decision to the Supreme Court of Canada.
Clara Morrissey
Kelly Ng
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