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SUPREME
COURT OF CANADA
Citation: Alberta (Information and Privacy Commissioner) v. United
Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733
|
Date: 20131115
Docket: 34890
|
Between:
Information
and Privacy Commissioner of Alberta
Appellant
and
United
Food and Commercial Workers, Local 401
Respondent
AND
BETWEEN:
Attorney
General of Alberta
Appellant
and
United
Food and Commercial Workers, Local 401
Respondent
-
and -
Attorney
General of Canada, Attorney General of Ontario, Privacy Commissioner of Canada,
Canadian Civil Liberties Association, British Columbia Civil Liberties
Association, Information and Privacy Commissioner of Ontario, Coalition of
British Columbia Businesses, Merit Canada, Information and Privacy Commissioner
of British Columbia and Alberta Federation of Labour
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell,
Moldaver, Karakatsanis and Wagner JJ.
Joint Reasons
for Judgment:
(paras. 1 to 42)
|
Abella and Cromwell JJ. (McLachlin C.J.
and LeBel, Fish, Rothstein, Moldaver, Karakatsanis and Wagner JJ. concurring)
|
![](/scc-csc/scc-csc/en/13334/280613/res.do)
Alberta (Information and Privacy Commissioner) v. United Food
and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733
Information and Privacy
Commissioner of Alberta Appellant
v.
United Food and Commercial
Workers, Local 401 Respondent
‑ and ‑
Attorney General of Alberta Appellant
v.
United Food and Commercial
Workers, Local 401 Respondent
and
Attorney General of Canada, Attorney
General of Ontario,
Privacy Commissioner of Canada, Canadian
Civil Liberties
Association, British Columbia Civil
Liberties Association,
Information and Privacy Commissioner of
Ontario,
Coalition of British Columbia
Businesses, Merit Canada,
Information and Privacy Commissioner of
British Columbia,
and Alberta
Federation of Labour Interveners
Indexed as: Alberta (Information and Privacy Commissioner) v.
United Food and Commercial Workers, Local 401
2013 SCC 62
File No.: 34890.
2013: June 11; 2013: November 15.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein,
Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for alberta
Constitutional
law — Charter of rights — Freedom of expression — Labour relations — Privacy —
Union video‑taping and photographing individuals crossing its picket line
for use in its labour dispute — Whether legislation restricting the collection,
use and disclosure of personal information violates union’s expressive right
under s. 2 (b) of Charter and, if so, whether violation is justified —
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b) — Personal Information
Protection Act, S.A. 2003, c. P‑6.5 — Personal Information
Protection Act Regulation, Alta. Reg. 366/2003.
During
a lawful strike lasting 305 days, both the Union and the employer video‑taped
and photographed individuals crossing the picketline. The Union posted signs
in the area of the picketing stating that images of persons crossing the
picketline might be placed on a website. Several individuals who were
recorded crossing the picketline filed complaints with the Alberta Information
and Privacy Commissioner. The Commissioner appointed an Adjudicator to decide
whether the Union had contravened the Personal Information Protection Act
(PIPA). The Adjudicator concluded that the Union’s collection, use and disclosure of the
information was not authorized by PIPA. On
judicial review, PIPA was found to violate the Union’s rights under
s. 2 (b) of the Charter . The Court of Appeal agreed and
granted the Union a constitutional exemption from the application of PIPA.
Held: The appeal is substantially dismissed.
PIPA establishes a general rule that organizations cannot collect, use
or disclose personal information without consent. None of PIPA’s exemptions
permit the Union to collect, use and disclose personal information for the
purpose of advancing its interests in a labour dispute. The central issue is
whether PIPA achieves a constitutionally acceptable balance between the
interests of individuals in controlling the collection, use and disclosure of
their personal information and a union’s freedom of expression. To the extent
that PIPA restricts collection for legitimate labour relations purposes,
it is in breach of s. 2 (b) of the Charter and cannot be
justified under s. 1 .
The
purpose of PIPA is to enhance an individual’s control over his or her
personal information by restricting the collection, use and disclosure of
personal information without that individual’s consent. The objective of
providing an individual with this measure of control is intimately connected to
individual autonomy, dignity and privacy, self‑evidently significant
social values.
But
the Act does not include any mechanisms by which a union’s
constitutional right to freedom of expression may be balanced with the
interests protected by the legislation. This Court has long recognized the fundamental
importance of freedom of expression in the context of labour disputes. PIPA
prohibits the collection, use, or disclosure of personal information for many
legitimate, expressive purposes related to labour relations. Picketing
represents a particularly crucial form of expression with strong historical
roots. 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. This infringement of the right to freedom of
expression is disproportionate to the government’s objective of providing
individuals with control over the personal information that they expose by
crossing a picketline. It is therefore not justified
under s. 1 of the Charter .
Given
the comprehensive and integrated structure of the statute, the Government of
Alberta and the Information and Privacy Commissioner requested that the Court
not select specific amendments, requesting instead that the entire statute be
declared invalid so that the legislature can consider the Act as a
whole. The declaration of invalidity is therefore granted but is suspended for
a period of 12 months to give the legislature the opportunity to decide
how best to make the legislation constitutionally compliant.
Cases Cited
Referred
to: Order P2010‑003; Synergen Housing Co‑op Ltd., 2010
CanLII 98626; Lavigne v. Canada (Office of the Commissioner of Official
Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Dagg v. Canada (Minister
of Finance), [1997] 2 S.C.R. 403; H.J. Heinz Co. of Canada Ltd. v.
Canada (Attorney General), 2006 SCC 13, [2006] 1 S.C.R. 441; R.W.D.S.U.,
Local 558 v. Pepsi‑Cola Canada Beverages (West) Ltd., 2002 SCC 8,
[2002] 1 S.C.R. 156; U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2
S.C.R. 1083; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2
S.C.R. 3; Reference re Public Service Employee Relations Act (Alta.),
[1987] 1 S.C.R. 313; Great Atlantic & Pacific Co. of Canada, [1994] O.L.R.B.
Rep. March 303; R. v. Morgentaler, [1988] 1 S.C.R. 30; Schachter
v. Canada, [1992] 2 S.C.R. 679.
Statutes and Regulations Cited
Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A‑3.
Canadian Charter of Rights and Freedoms,
ss. 1 , 2 (b).
Personal Information Protection Act,
S.A. 2003, c. P‑6.5, ss. 1(1)(i) “organization”, (k) “personal
information”, 3, 4(1), (3)(a), (b), (c), 7(1), 14(d), (e), 17(d), (e),
20(f), (j), (m), 56(2), (3).
Personal Information Protection Act Regulation, Alta. Reg. 366/2003, s. 7.
Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 26(2) (b).
Authors Cited
Adams, George W. Canadian Labour Law, 2nd ed., vol. 1.
Aurora, Ont.: Canada Law Book, 1993 (loose-leaf updated June 2013, release
46).
Canada. Report of a Task Force established jointly by Department of
Communications/Department of Justice. Privacy and Computers. Ottawa:
Information Canada, 1972.
Craig, John D. R. “Invasion of Privacy and Charter
Values: The Common‑Law Tort Awakens” (1997), 42 McGill L.J. 355.
Drapeau, Michel W., and Marc‑Aurèle Racicot. Protection of Privacy in the Canadian Private and Health Sectors
2013. Toronto: Carswell, 2012.
Gratton, Éloïse. Understanding Personal Information: Managing
Privacy Risks. Markham, Ont.: LexisNexis, 2013.
Hogg, Peter W. Constitutional Law of Canada, 5th ed.
Supp., vol. 2. Toronto: Thomson/Carswell, 2007 (updated 2012, release
1).
Hunt, Chris D. L. “Conceptualizing Privacy and
Elucidating its Importance: Foundational Considerations for the Development of
Canada’s Fledgling Privacy Tort” (2011), 37 Queen’s L.J. 167.
International Labour Organization. Report of the Director‑General:
Freedom of association in practice: Lessons learned. Geneva:
International Labour Office, 2008
(online:http://www.ilo.org/wcmsp5/groups/public/@dgreports/@dcomm/documents/publication/wcms_096122.pdf).
MacNeil, Michael. “Unions and the Charter : The Supreme
Court of Canada and Democratic Values” (2003), 10 C.L.E.L.J. 3.
Rayner, Wesley B. Canadian Collective Bargaining Law,
2nd ed. Markham, Ont.: LexisNexis, 2007.
APPEAL
from a judgment of the Alberta Court of Appeal (Slatter and McDonald JJ.A.
and Read J. (ad hoc)), 2012 ABCA 130, 57 Alta. L.R. (5th) 249, 522
A.R. 197, 544 W.A.C. 197, 349 D.L.R. (4th) 654, 258 C.R.R. (2d) 110, 33 Admin.
L.R. (5th) 321, [2012] 6 W.W.R. 211, 2012 CLLC ¶210‑025, [2012] A.J. No. 427
(QL), 2012 CarswellAlta 760, allowing in part (only to the extent the remedy
was varied) a decision of Goss J., 2011 ABQB 415, 53 Alta. L.R. (5th) 235,
509 A.R. 150, 339 D.L.R. (4th) 279, 32 Admin. L.R. (5th) 107, [2012] 4 W.W.R.
324, 2011 CLLC ¶210‑055, [2011] A.J. No. 940 (QL), 2011 CarswellAlta
1486, setting aside a decision of the Information and Privacy Commissioner, Order
P2008-008, 2009 CanLII 90942. Appeal substantially dismissed.
Glenn
Solomon, Q.C., and Robert W.
Armstrong, for the appellant the Information and Privacy Commissioner of
Alberta.
Roderick
Wiltshire, for the appellant the Attorney General
of Alberta.
Gwen J.
Gray, Q.C., and Vanessa Cosco, for
the respondent.
Sean
Gaudet, for the intervener the Attorney General of
Canada.
Rochelle S.
Fox and Sara Weinrib, for the intervener the
Attorney General of Ontario.
Mahmud
Jamal, Patricia Kosseim, Regan Morris
and Kirk Shannon, for the intervener the Privacy Commissioner of Canada.
Patricia D. S.
Jackson and Sarah Whitmore, for the
intervener the Canadian Civil Liberties Association.
Lindsay M.
Lyster, for the intervener the British Columbia
Civil Liberties Association.
William S.
Challis, for the intervener the Information and
Privacy Commissioner of Ontario.
Simon
Ruel, for the interveners the Coalition of British
Columbia Businesses and Merit Canada.
Written submissions only by Nitya Iyer, for the intervener
the Information and Privacy Commissioner of British Columbia.
David
Williams and Kristan McLeod, for the
intervener the Alberta Federation of Labour.
The judgment of the Court was
delivered by
Abella
and Cromwell JJ. —
Overview
[1]
This appeal requires the Court to determine
whether Alberta’s Personal Information Protection Act unjustifiably
limits a union’s right to freedom of expression in the context of a lawful
strike. At issue is whether the Act achieves a constitutionally
acceptable balance between the interests of individuals in controlling the
collection, use and disclosure of their personal information and a union’s
freedom of expression.
[2]
The dispute in this case arose when the United
Food and Commercial Workers, Local 401 recorded and photographed individuals
crossing its picketline for use in its labour dispute. Several individuals
whose images were captured complained to the Information and Privacy
Commissioner of Alberta that the Union’s activities contravened the Personal
Information Protection Act, S.A. 2003, c. P-6.5 (“PIPA”), which
restricts the collection, use and disclosure of personal information by a range
of organizations. Those individuals were successful, prompting an application
for judicial review on the basis that the legislation infringed the Union’s
right to freedom of expression under s. 2 (b) of the Canadian Charter
of Rights and Freedoms and that this infringement was not justified under
s. 1 .
[3]
In our view, the legislation violates s. 2 (b)
because its impact on freedom of expression in the labour context is
disproportionate and the infringement is not justified under s. 1 .
Facts
[4]
The Union represents employees at the Palace
Casino at West Edmonton Mall in Alberta. In 2006, during a lawful strike which
lasted 305 days, both the Union and a security company hired by the employer
video-taped and photographed the picketline near the main entrance to the
Casino. The Union posted signs in the area of the picketing stating that
images of persons crossing the picketline might be placed on a website called
www.casinoscabs.ca.
[5]
Several individuals who were recorded crossing
the picketline filed complaints with the Alberta Information and Privacy
Commissioner under PIPA. The Vice-President of the Casino
complained that he was photographed or video-taped and that two pictures of him
were used on a poster displayed at the picketline with the text: “This is [x’s]
Police Mugshot.” Images of his head were also used in union newsletters and
strike leaflets with captions intended to be humorous. Another complainant, a
member of the public, testified that cameras were trained on the entrance to
the Casino where he would regularly meet friends. A third complainant testified
that she had been photographed and video-taped while working near the Casino
entrance. No recordings of the complainants were placed on the website.
[6]
The Commissioner appointed an Adjudicator to
decide whether the Union, in collecting, using and disclosing personal
information about individuals without their consent had contravened PIPA.
In Alberta, the Administrative Procedures and Jurisdiction Act, R.S.A.
2000, c. A-3, and accompanying regulations prevent the Commissioner from
deciding questions of constitutional law. As a result, the Adjudicator lacked
jurisdiction to consider the Union’s arguments on the constitutionality of PIPA
or its application to the Union’s activities. The Adjudicator accepted the
Union’s evidence that it is common practice in Alberta for both employers and
unions to video-tape and photograph picketlines and that the Union did so for
the following reasons:
•
informing the public about the strike, including
through pamphlets, newsletters and a website;
•
informing picketing Union members about the
strike, including through pamphlets, newsletters and a website;
•
dissuading people from crossing the picketline;
•
acting as a deterrent to violence from
non-picketers;
•
gathering evidence should it become relevant to
an investigation or legal proceeding (both of altercations as well as to show
long periods of peaceful picketing);
•
creating material for use as a training tool for
Union members;
•
providing material to other unions for
educational purposes;
•
supporting morale on the picket line with the
use of humour;
•
responding to similar activity on the part of
the employer; and
•
deterring theft of Union property.
(Order P2008-008; United Food and
Commercial Workers, Local 401, 2009 CanLII 90942 (AB OIPC), at para. 20)
The Adjudicator concluded that “many of these purposes also promoted
the underlying purpose of the strike — that of achieving a resolution to the
labour dispute [in favour] of the Union”: para. 20. The Adjudicator concluded that the Union’s collection,
use and disclosure of private information was for an expressive purpose. As
she put it, “one of the primary purposes of the Union’s information collection
was to dissuade people from crossing the picket line”: para. 51. She also
concluded that she was not aware of, and had not been referred to, any
provisions of PIPA that would authorize collection, use and disclosure
of personal information for that purpose: para. 67. She
rejected the Union’s claim that it was covered by the “journalistic purposes”
exemption because its activities were also aimed at resolving the labour
dispute in its favour. The “journalistic purposes” exemption in the Act
therefore did not apply to the extent that the information was collected, used
or disclosed for other purposes. The Union’s ancillary argument — that the
collection, use and disclosure of personal information was authorized under
another exemption — a possible investigation or legal proceeding — was
accepted, but was not sufficient to exempt the Union’s activity from PIPA for
any other purpose. The Union was ordered to stop 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 had been obtained in contravention of the Act.
[7]
On judicial review, the Union argued that the
provisions of PIPA that prevent it from collecting, using and disclosing
personal information obtained from its lawful picketline infringed s. 2 (b)
of the Charter (2011 ABQB 415, 53 Alta. L.R. (5th) 235). The
chambers judge found that the Union’s activity had expressive content and that
there was no reason to exclude it from the protection of s. 2 (b). She
found that PIPA, as interpreted by the Adjudicator, directly
limited the Union’s freedom of expression by preventing the Union from
collecting, using, and disclosing personal information obtained about
individuals while they were in public view. She also concluded that the breach
could not be justified under s. 1 .
[8]
The Court of Appeal was of the view that the
real issue in the case was whether it was justifiable to restrain expression in
support of labour relations and collective bargaining activities (2012 ABCA
130, 57 Alta. L.R. (5th) 249). It concluded that PIPA was overbroad.
The privacy interest at stake was minor since the complainants were in a public
place, crossing a picketline, and had notice that images were being collected.
On the other side of the balance was the right of workers to engage in
collective bargaining and of the Union to communicate with the public: para.
74. The Court of Appeal agreed with the chambers judge that there was a breach
of s. 2 (b) that could not be saved under s. 1 and it therefore granted
the Union a constitutional exemption from the application of PIPA.
Analysis
[9]
The stated constitutional questions in this case
are:
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 ?
[10]
We turn first to the question of whether PIPA
limits freedom of expression. This case arises in the specific factual context
that was before the Adjudicator, but the challenge is to PIPA as a
whole. While there was some debate about whether particular aspects of the
conduct engaged in by the Union were protected by s. 2 (b), there can be
no doubt, in our view, that PIPA limits expressive activity that is so
protected. The reviewing judge and the Court of Appeal both recognized that the
collection, use and disclosure of personal information by the Union in the
context of picketing during a lawful strike is inherently expressive. We agree.
[11]
As the parties conceded, freedom of expression
under s. 2 (b) is clearly engaged by the Union’s activities. The Union
collected personal information by recording the picketline. One of the primary
purposes for the Union’s collection of personal information was, as the
Adjudicator recognized, to dissuade people from crossing the picketline: para.
51; Goss J., at paras. 31-34; Court of Appeal, at para. 64. Recording conduct
related to picketing and, in particular, recording a lawful picketline and any
individuals who crossed it, is expressive activity: its purpose was to persuade
individuals to support the Union. So too is recording and potentially using or
distributing recordings of persons crossing the picketline for deterring people
from crossing the picketline and informing the public about the strike.
[12]
To understand how PIPA limited the
Union’s expressive activities, it is helpful to review the legislation in some
detail.
[13]
Alberta’s PIPA was inspired by the
federal Personal Information Protection and Electronic Documents Act,
S.C. 2000, c. 5 (“PIPEDA ”). Both pieces of legislation are part of an
international movement towards giving individuals better control over their
personal information: Éloïse Gratton, Understanding Personal Information:
Managing Privacy Risks (2013), at pp. 6 ff. PIPEDA generally
applies to private sector organizations engaged in commercial activities in any
province. It does not apply, however, if the Governor in Council determines
that there is comparable protection in place in the province, as is the case
with respect to PIPA in Alberta: PIPEDA, s. 26(2) (b);
Michel W. Drapeau and Marc-Aurèle Racicot, Protection of Privacy in the
Canadian Private and Health Sectors 2013 (2012), at p. AB-3.
[14]
PIPA’s stated
purpose is almost identical to that of the PIPEDA . PIPA’s purpose
is explicitly set out in s. 3, which states that it 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.
[15]
The scope of PIPA is, however,
considerably broader than that of PIPEDA . Unlike PIPEDA, PIPA’s
limitations on the collection, use and disclosure of personal information are
not restricted to those activities undertaken for commercial purposes.
Instead, PIPA establishes a general rule that organizations cannot
collect, use or disclose personal information without consent: s. 7(1). Except
as provided for by PIPA, it “applies to every organization and in
respect of all personal information”: s. 4(1). The term “organization”
includes a corporation, an unincorporated association, a trade union, a
partnership, or an individual acting in a commercial capacity: s. 1(1)(i). The
term “personal information” is defined broadly to mean “information about an
identifiable individual”: s. 1(1)(k). The Commissioner has made it clear that
personal information includes information that is not “private”, so that
“personal information does not lose its character as personal information if
the information is widely or publicly known”: Order P2010-003; Synergen
Housing Co-op Ltd., 2010 CanLII 98626 (AB OIPC), at para. 17.
[16]
The breadth of PIPA is mitigated by a
series of exemptions. The most relevant include the following. First, through
a restriction on the definition of “organization”, PIPA excludes from
its application individuals acting in a “personal or domestic capacity”: ss.
1(1)(i) and 4(3)(a). Second, s. 56(2) and (3) operate together so that PIPA
does not apply to a non-profit organization unless that organization collects,
uses, or discloses information in connection with a commercial activity. Third,
the application provision indicates that PIPA does not apply in certain
circumstances, including when information is collected, used, or disclosed for
“artistic or literary purposes and for no other purpose” (s. 4(3)(b)) or when
it is collected, used or disclosed for “journalistic purposes and for no
other purpose” (s. 4(3)(c)). Finally, PIPA creates an exception to
the consent requirement where the collection, use or disclosure of the
information is reasonable for the purposes of an investigation or a legal
proceeding (ss. 14(d), 17(d), 20(f) and (m)) or the information is “publicly
available as prescribed or otherwise determined by the regulations” (ss. 14(e),
17(e) and 20(j)). The term “publicly available” is narrowly defined in s. 7 of
the Personal Information Protection Act Regulation, Alta. Reg. 366/2003,
to mean information that is available: in a telephone or business directory (or
other similar registry); in a record of a quasi-judicial body; or in a
magazine, book, or newspaper.
[17]
Given the Adjudicator’s finding that none of
these exemptions applied to allow the Union to collect, use and disclose
personal information for the purpose of advancing its interests in a labour
dispute, we conclude without difficulty that it restricts freedom of
expression.
[18]
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.
[19]
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:
3 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.
The focus is on providing
an individual with some measure of control over his or her personal
information: Gratton, at pp. 6 ff. The ability of individuals to control
their personal information is intimately connected to their individual
autonomy, dignity and privacy. These are fundamental values that lie at the
heart of a democracy. As this Court has previously recognized, legislation
which aims to protect control over personal information should be characterized
as “quasi-constitutional” because of the fundamental role privacy plays in the
preservation of a free and democratic society: Lavigne v. Canada (Office of
the Commissioner of Official Languages), [2002] 2 S.C.R. 773, at para. 24; Dagg
v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paras. 65-66; H.J.
Heinz Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441,
at para. 28.
[20]
PIPA’s objective
is 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. There
is also no serious question that PIPA is rationally connected to this
important objective. As the Union acknowledges, PIPA directly addresses
the objective by imposing broad restrictions on the collection, use and
disclosure of personal information. However, in our view, these broad
restrictions are not justified because they are disproportionate to the
benefits the legislation seeks to promote. In other words, “the Charter infringement
is too high a price to pay for the benefit of the law”: Peter W. Hogg, Constitutional
Law of Canada (5th ed. Supp.), vol. 2, at p. 38-43.
[21]
The beneficial effects of PIPA’s goal are
demonstrable. PIPA seeks to enhance an individual’s control over his or
her personal information by restricting who can collect, use and disclose
personal information without that individual’s consent and the scope of such
collection, use and disclosure. PIPA and legislation like it reflect an
emerging recognition that the list of those who may access and use personal
information has expanded dramatically and now includes many private sector
actors. PIPA seeks to regulate the use of personal information and
thereby to protect informational privacy, the foundational principle of which
is that “all information about a person is in a fundamental way his own, for
him to communicate or retain . . . as he sees fit”: Report of a Task Force
established jointly by the Department of Communications/Department of Justice, Privacy
and Computers (1972), at p. 13.
[22]
Insofar as PIPA seeks to safeguard
informational privacy, it is “quasi-constitutional” in nature: Lavigne,
at para. 24; Dagg, at paras. 65-66; H.J. Heinz, at para. 28. The
importance of the protection of privacy in a vibrant democracy cannot be
overstated: see John D. R. Craig, “Invasion of Privacy and Charter
Values: The Common-Law Tort Awakens” (1997), 42 McGill L.J. 355, at pp.
360-61. As Chris D. L. Hunt writes in “Conceptualizing Privacy and
Elucidating its Importance: Foundational Considerations for the Development of
Canada’s Fledgling Privacy Tort” (2011), 37 Queen’s L.J. 167, at p. 217,
“[d]emocracy depends on an autonomous, self-actualized citizenry that is free
to formulate and express unconventional views. If invasions of privacy inhibit
individuality and produce conformity, democracy itself suffers.”
[23]
PIPA also seeks
to avoid the potential harm that flows from the permanent storage or unlimited
dissemination of personal information through the Internet or other forms of
technology without an individual’s consent.
[24]
Finally, as discussed above, the objective of
providing an individual with some measure of control over his or her personal
information is intimately connected to individual autonomy, dignity and
privacy, self-evidently significant social values.
[25]
The price PIPA exacts, however, is
disproportionate to the benefits it promotes. PIPA limits the
collection, use and disclosure of personal information other than with consent
without regard for the nature of the personal information, the purpose for
which it is collected, used or disclosed, and the situational context for that
information. As the Adjudicator recognized in her decision, PIPA does
not provide any way to accommodate the expressive purposes of unions engaged in
lawful strikes. Indeed, the Act does not include any mechanisms by which
a union’s constitutional right to freedom of expression may be balanced with
the interests protected by the legislation. As counsel for the Commissioner
conceded during oral submissions, PIPA contains a general prohibition of
the Union’s use of personal information (absent consent or deemed consent) to
further its collective bargaining objectives. As a result, PIPA deems
virtually all personal information to be protected regardless of context.
[26]
But the extent to which significant values were
actually impaired in the context of this case must be kept in context. The
personal information was collected by the Union at an open political
demonstration where it was readily and publicly observable. Those crossing the
picketline would reasonably expect that their image could be caught and
disseminated by others such as journalists, for example. Moreover, the
personal information collected, used and disclosed by the Union was limited to
images of individuals crossing a picketline and did not include intimate
biographical details. No intimate details of the lifestyle or personal choices
of the individuals were revealed.
[27]
It goes without saying that by appearing in
public, an individual does not automatically forfeit his or her interest in
retaining control over the personal information which is thereby exposed. This
is especially true given the developments in technology that make it possible
for personal information to be recorded with ease, distributed to an almost infinite
audience, and stored indefinitely. Nevertheless, PIPA’s restrictions
operate in the context of a case like this one to impede the formulation and
expression of views on matters of significant public interest and importance.
[28]
PIPA’s
deleterious effects weigh heavily in the balance. What is of the utmost
significance in our view is that PIPA prohibits the collection, use, or
disclosure of personal information for many legitimate, expressive purposes
related to labour relations. These purposes include ensuring the safety of
union members, attempting to persuade the public not to do business with an
employer and bringing debate on the labour conditions with an employer into the
public realm. These objectives are at the core of protected expressive activity
under s. 2 (b).
[29]
This Court has long recognized the fundamental
importance of freedom of expression in the context of labour disputes: R.W.D.S.U.,
Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156
(“Pepsi”), at para. 33. In U.F.C.W., Local 1518 v. KMart
Canada Ltd., [1999] 2 S.C.R. 1083 (“KMart”), Cory J., writing
for the Court, held that “[f]or employees, freedom of expression becomes not
only an important but an essential component of labour relations”: para.
25 (emphasis added).
[30]
Expressive activity in the labour context is
directly related to the Charter protected right of workers to associate
to further common workplace goals under s. 2 (d) of the Charter :
Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3, at para.
38. As the International Labour Organization observed, “[t]he exercise of
freedom of association and collective bargaining is dependent on the
maintenance of fundamental civil liberties, in particular, . . . freedom of
opinion and expression”: Report of the Director-General: Freedom of
association in practice: Lessons learned (2008), at para. 34.
[31]
A person’s employment and the conditions of
their workplace can inform their identity, emotional health, and sense of
self-worth: Reference re Public Service Employee Relations Act
(Alta.), [1987] 1 S.C.R. 313, at p. 368. As McLachlin C.J. and LeBel J.
recognized in Pepsi, free expression on these issues therefore
“contributes to self-understanding, as well as to the ability to influence one’s
working and non-working life”: para. 34.
[32]
Free expression in the labour context can also
play a significant role in redressing or alleviating the presumptive imbalance
between the employer’s economic power and the relative vulnerability of the
individual worker: Pepsi, at para. 34. It is through their
expressive activities that unions are able to articulate and promote their
common interests, and, in the event of a labour dispute, to attempt to persuade
the employer.
[33]
Finally, in the labour context, freedom of
expression can enhance broader societal interests. As this Court found in Pepsi,
the free flow of expression by unions and their members during a labour
dispute plays an important role in bringing issues relating to labour
conditions into the public arena for discussion and debate: paras. 34-35. As
this Court emphasized in Pepsi, free expression provides “an avenue for
unions to promote collective bargaining issues as public ones to be played out
in civic society, rather than being confined to a narrow realm of
individualized economic disputes”: Michael MacNeil, “Unions and the Charter :
The Supreme Court of Canada and Democratic Values” (2003), 10 C.L.E.L.J.
3, at p. 24.
[34]
Since the Second World War, the Canadian
government has recognized that unions have a role to play in the Canadian
economy and society more broadly: George W. Adams, Canadian Labour Law
(2nd ed. (loose-leaf)), vol. 1, at pp. 1-11 to 1-16. This recognition includes
a general acceptance that workers have the right to associate and bargain
collectively and that when collective bargaining breaks down, unions and
employers may, in certain circumstances, legitimately exert economic sanctions
in order to facilitate resolution of the dispute in their favour: Wesley B.
Rayner, Canadian Collective Bargaining Law (2nd ed. 2007), at pp. 2 and
457.
[35]
Within the labour context, picketing represents
a particularly crucial form of expression with strong historical roots.
Strikes and picketlines have been used by Canadian unions to exert economic
pressure and bargain with employers for over a century: affidavit of Dr.
Jeffery M. Taylor, A.R., vol. IV, at p. 35. The use of picketlines is an
invaluable tool in the economic arsenal of workers in the collective bargaining
process: Rayner, at p. 483. As Judith McCormack, then Chair of the Ontario
Labour Relations Board, explained in Great Atlantic & Pacific Co. of
Canada, [1994] O.L.R.B. Rep. March 303:
Picketing is . . . part of a group of economic sanctions which are
considered key to the scheme of collective bargaining as a whole. While such
sanctions are not frequently resorted to in the overall landscape of collective
bargaining, it is axiomatic that the underlying threat of such economic
conflict is what drives the vast majority of uneventful negotiations and
contract settlements. [para. 35]
[36]
The effectiveness of picketlines is dependent on
the ability of the union to try to convince the public not to cross the
picketline and do business with the employer. Cory J. recognized the
significance of the role of public opinion in KMart, where he
observed that “it is often the weight of public opinion which will
determine the outcome of the dispute”: para. 46. In some cases, this goal may
be achieved simply by making others aware of the labour dispute. In others,
however, a union may achieve its goal by putting pressure on those who intend
to cross the picketline. The imposition of public or economic pressure has
come to be accepted as a legitimate price to pay to encourage the parties to
resolve their dispute. As McLachlin C.J. and LeBel J. observed in Pepsi,
strikes are not tea parties: para. 90. This Court has acknowledged that
such pressure is permissible as long as it does not rise to the level of a
tortious or criminal act: Pepsi, at paras. 96 and 101-7.
[37]
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.
[38]
This conclusion does not require that we condone
all of the Union’s activities. The breadth of PIPA’s restrictions
makes it unnecessary to examine the precise expressive activity at issue in
this case. It is enough to note that, like privacy, freedom of expression is
not an absolute value and both the nature of the privacy interests implicated
and the nature of the expression must be considered in striking an appropriate
balance. To the extent that PIPA restricted the Union’s collection, use
and disclosure of personal information for legitimate labour relations
purposes, the Act violates s. 2 (b) of the Charter and
cannot be justified under s. 1 .
[39]
Accordingly, we would answer the constitutional
questions 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?
Answer: Yes.
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 ?
Answer:
No.
[40]
Both the Information and Privacy Commissioner of
Alberta and the Attorney General of Alberta stated in oral argument that if
they were unsuccessful, they would prefer that PIPA be struck down in
its entirety. We agree. Given the comprehensive and
integrated structure of the statute, we do not think it is appropriate to pick
and choose among the various amendments that would make PIPA
constitutionally compliant: R. v. Morgentaler, [1988] 1 S.C.R.
30, at p. 80; Schachter v. Canada, [1992] 2 S.C.R. 679, at p.
707.
[41]
We would therefore declare PIPA to be
invalid but suspend the declaration of invalidity for a period of 12 months to
give the legislature time to decide how best to make the legislation
constitutional. Rather than sustain the constitutional exemption ordered by
the Court of Appeal, we would simply quash the Adjudicator’s order.
[42]
The Union is entitled to its costs.
Appeal
substantially dismissed with costs.
Solicitors for the
appellant the Information and Privacy Commissioner of Alberta: Jensen
Shawa Solomon Duguid Hawkes, Calgary.
Solicitor for the
appellant the Attorney General of Alberta: Attorney General of
Alberta, Edmonton.
Solicitors for the
respondent: Chivers Carpenter, Edmonton.
Solicitor for the
intervener the Attorney General of Canada: Attorney General of
Canada, Toronto.
Solicitor for the
intervener the Attorney General of Ontario: Attorney General of
Ontario, Toronto.
Solicitors for the
intervener the Privacy Commissioner of Canada: Osler, Hoskin &
Harcourt, Toronto; Office of the Privacy Commissioner of Canada, Ottawa.
Solicitors for the
intervener the Canadian Civil Liberties Association: Torys, Toronto.
Solicitors for
the intervener the British Columbia Civil Liberties Association: Moore,
Edgar, Lyster, Vancouver.
Solicitor for the
intervener the Information and Privacy Commissioner of Ontario: Information
and Privacy Commissioner of Ontario, Toronto.
Solicitors for the
interveners the Coalition of British Columbia Businesses and Merit Canada: Heenan
Blaikie, Ottawa.
Solicitors for the
intervener the Information and Privacy Commissioner of British Columbia: Lovett
Westmacott, Vancouver.
Solicitors for the
intervener the Alberta Federation of Labour: Chivers Carpenter,
Edmonton.