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Supreme Court of Canada rules there is no breach of statutory privacy to post photos of workers during strikes.

video camera
“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 theCharter. The Court of Appeal agreed and granted the Union a constitutional exemption from the application of PIPA. ” In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, the S.C.C. (9:0) held that the appeal is "substantially dismissed.”

Justices Abella and Cromwell wrote as follows (at paras. 1-3, 37-38, 40-41):

“This appeal requires the Court to determine whether Alberta’s Personal Information Protection Actunjustifiably limits a union’s right to freedom of expression in the context of a lawful strike. At issue is whether theAct 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.

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.

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.

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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.

This conclusion does not require that we condone all of the Union’s activities. The breadth of PIPA’srestrictions 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.

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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.

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."

Note: This summary is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.


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