Supreme Court of Canada strikes down Alberta’s privacy legislation

The Supreme Court of Canada recently released an important decision regarding the constitutionality of Alberta’s Personal Information Protection Act (PIPA), the legislation that governs the collection, use and disclosure of information in the private sector in Alberta. The Court’s decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 involved the balancing of the interests of individuals in controlling their personal information and a union’s freedom of expression.

The dispute occurred during a lawful strike at a casino in West Edmonton Mall in 2006. The strike lasted for approximately 10 months. During that time, both the Union and a security company hired by the employer video-taped and photographed the picketline near the main entrance to the casino. A number of individuals who had been recorded by the Union filed complaints with the Alberta Information and Privacy Commissioner. Their primary complaint was that their personal information (i.e. images of them that were captured when they were in the vicinity of the picketline) was being collected, used and disclosed without their consent contrary to PIPA.

The Court determined that PIPA directly limited the Union’s freedom of expression contrary to section 2(b) of the Charter and could not be justified under section 1. PIPA prohibited the Union from recording the picketline for legitimate, expressive purposes related to labour relations, such as dissuading people from crossing the picketline line and persuading them to support the Union. This infringement on the Union’s right to freedom of expression was out of proportion to the corresponding benefits the legislation sought to promote by providing individuals with control over the personal information that was at issue.

The Court declared PIPA to be invalid but has suspended the declaration of invalidity for a period of 12 months. During that time, the Alberta legislature will have the opportunity to decide how to amend PIPA to make it constitutional. In the meantime, a number of other jurisdictions will need to consider what effect the Court’s decision will have on the constitutionality of their own private-sector privacy legislation. For example, the Federal government, British Columbia, Quebec and, more recently, Manitoba, have all enacted legislation that is similar to PIPA in many important respects and would therefore be vulnerable to a similar constitutional challenge.

While the decision is of course important simply for the result and the potentially wide-ranging effect it will have on privacy legislation across Canada, the Court also made a number of noteworthy comments with respect to privacy law generally. For example:

  • PIPA and similar legislation are part of an “international movement towards giving individuals better control over their personal information” (paragraph 13).
  • Privacy legislation “should be characterized as ‘quasi-constitutional’ because of the fundamental role privacy plays in the preservation of a free and democratic society” (paragraph 19).
  • The objectives of privacy legislation are “increasingly significant in the modern context, where new technologies give organizations an almost unlimited capacity to collect personal information, analyze it, use it and communicate it to others for their own purposes” (paragraph 20).
  • “The importance of the protection of privacy in a vibrant democracy cannot be overstated” (paragraph 22).
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