SCC Upholds Union’s Expression Rights over Privacy Challenge
The Supreme Court of Canada has issued a unanimous decision dismissing an appeal brought by the Alberta Information and Privacy Commissioner in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 (2013 SCC 62). The judgment of the unanimous Court delivered by Justices Abella and Cromwell was a sweeping endorsement of a union’s right to freedom of expression in the context of a labour dispute. But it could well have significant implications in other instances where privacy legislation comes into conflict with other rights as well.
The litigation arose in the context of a labour dispute when the union representing employees at the Palace Casino in the West Edmonton Mall recorded and photographed individuals crossing its picketline near the main entrance of the casino. The union had posted signs in the area stating that images of those crossing the line might be placed on a website. Several individuals whose images were taken complained to the Alberta Information and Privacy Commissioner that the Union’s activities violated their privacy rights under Alberta’s Personal Information Protection Act (PIPA). The Commissioner’s adjudicator agreed and ordered the union to cease collecting the personal information for any purposes other than a possible investigation or legal proceeding and to destroy any personal information it had in its possession that was obtained in violation of PIPA.
In its application for judicial review, the union argued that the provisions of PIPA that prevented them from collecting and using the information obtained from its picketline activities infringed their right to freedom of expression under section. 2(b) of the Canadian Charter of Rights and Freedoms. The trial judge agreed, finding that the Union’s activity had expressive content, that the adjudicator’s directly limited the Union’s freedom of expression, and that this violation could not be justified under section 1 of the Charter. On appeal, the Alberta Court of Appeal (2012 ABCA 130) concluded that PIPA was overbroad, that there was a breach of s. 2(b) that could not be saved under s. 1 and it granted the Union a constitutional exemption from the application of PIPA. The province sought and obtained review in the Supreme Court of Canada, leading to today’s decision.
The questions before the Supreme Court were:
Whether PIPA violates section 2(b) of the Charter insofar as it restricts a union’s ability to collect, use or disclose personal information during the course of a lawful strike; and if so whether the infringement was a reasonable limit prescribed by law, which can be demonstrably justified in a free and democratic society under section 1 of Charter.
In concluding that PIPA did indeed violate section 2(b) and that this infringement could not be justified under section 1, the court undertook a careful balancing analysis. The court reviewed the purposes of PIPA (which is largely based on and has the purpose of the federal Personal Information Protection and Electronic Documents Act)
PIPA’s purpose is set out in s. 3:
. . . to govern the collection, use and disclosure of personal information by organizations in a manner that recognizes both the right of an individual to have his or her personal information protected and the need of organizations to collect, use or disclose personal information for purposes that are reasonable.
The scope of PIPA is also limited by a number of exemptions, but the Adjudicator found that none of them applied to the Union in this case. The court was able to find without difficulty that the adjudicator’s ruling under PIPA restricted freedom of expression which then requires an analysis under section 1. The court said:
This brings us to the s. 1 analysis. At this stage, we must determine whether PIPA serves a pressing and substantial objective and, if so, whether its provisions are rationally connected to that objective, whether it impairs the right to freedom of expression no more than is necessary, and whether its effects are proportionate to the government’s objective. While PIPA is rationally connected to a pressing and substantial objective, its broad limitations on freedom of expression are not demonstrably justified because its limitations on expression are disproportionate to the benefits the legislation seeks to promote. [para 18]
There is no dispute that PIPA has a pressing and substantial objective. The purpose of PIPA is explicitly set out in s. 3, as previously noted, which states:
The purpose of this Act is to govern the collection, use and disclosure of personal information by organizations in a manner that recognizes both the right of an individual to have his or her personal information protected and the need of organizations to collect, use or disclose personal information for purposes that are reasonable. [para 19]
While the court was able to find the first prong of section 1 analysis satisfied because of PIPA’s legitimate objective, they were not satisfied that the restrictions were proportional to the beneficial purposes of the legislation:
However, these broad restrictions are not justified because they are disproportionate to the benefits the legislation seeks to promote [para 20]
In engaging this balancing court emphasized the importance of freedom of expression in the context of labour disputes and they concluded that:
PIPA imposes restrictions on a union’s ability to communicate and persuade the public of its cause, impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike. In our view, this infringement of the right to freedom of expression is disproportionate to the government’s objective of providing individuals with control over personal information that they expose by crossing a picketline. [para 37]
For these reasons, the court answered the questions on appeal as follows:
1. Do the Personal Information Protection Act, S.A. 2003, c. P-6.5, and the Personal Information Protection Act Regulation, Alta Reg. 366/2003, violate s. 2(b) of the Canadian Charter of Rights and Freedoms insofar as they restrict a union’s ability to collect, use or disclose personal information during the course of a lawful strike?
2. If so, is the infringement a reasonable limit prescribed by law, which can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?
No. [para 39]
While the court found PIPA to be invalid, the ruling suspended the declaration of invalidity for a period of 12 months to give the Alberta legislature time to decide how to best fix the Act.
In this case, the court conducted the type of balancing of interests that is typical in Charter litigation involving an application of section 1 to the underlying infringement. In this case they were heavily influenced by the historical importance of protecting expression in the context of labour disputes. However, the decision could have significant influence in other contexts where the application of privacy measures come into conflict with other significant interests, as in the case of access to information legislation.