United Food and Commercial Workers, Local 401 v. Alberta, 2012 ABCA 130

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.

Link to Decision

Clara Morrissey

Kelly Ng

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Leon’s Furniture Limited v. Alberta (Information and Privacy Commissioner), 2011 ABCA 94

In Leon’s Furniture Limited v. Alberta, the Alberta Court of Appeal considered several issues relating to the interpretation of the Personal Information Privacy Act (PIPA).

 This case was a judicial review of a decision by the Privacy Commissioner finding that it was unreasonable for the appellant Leon’s Furniture Ltd. to record driver’s license and vehicle registration information when a person picks up a good. At the tribunal level, the adjudicator found that both driver’s license information and vehicle registration numbers were personal information and it was unreasonable for the appellant to record them.

First, Slatter, J.A. and the majority held that a retailer is permitted to collect personal information where it would be reasonable. They therefore found the tribunal's decision in this regard unreasonable, and overturned it. Conrad, J.A. dissented, finding that the PIPA was enacted to protect individuals’ personal information, and collection can only occur if the information is necessary or subject to the exceptions listed in the Act.

 Second, Slatter, J.A. and the majority found that while driver’s license numbers are personal information, vehicle registration numbers are not. In order to be personal information, the information must be about an “identifiable individual” (s 1(k) of the PIPA). The individual must be specifically identified by the information, and the information must be about the individual. Since vehicle registration numbers identify a vehicle and not a person, they are not personal information. Conrad, J.A. dissented and would have found both the driver’s license number and vehicle registration numbers to be personal information. Conrad, J.A. would have interpreted the words “information about an identifiable individual” in section 1(k) of the PIPA broadly and include any information about a person that could be identified from the information itself or who could be identified in combination with information from another source.

Finally, Slatter, J.A. and the majority found it reasonable for a retailer to record personal information when goods are picked up and allowed the appeal. The record of driver’s license information when picking up goods acts to deter fraud and provide information to authorities where fraud has occurred. The question of whether the information was improperly stored was not argued in this case. In dissent, Conrad, J.A. found that driver’s license numbers could be used for the purposes of identity theft and therefore would have upheld the adjudicator’s decision.

March 28, 2011
Link to Decision

Mary Phan
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