On April 20, 2012, the Alberta Court of Appeal released its decision in United Food and Commercial Workers, Local 401 v Alberta (Attorney General)¹ clarifying the treatment of the statutory privacy rights created by the Alberta Personal Information Protection Act²vis-à-vis the right to free expression guaranteed by the Canadian Charter of Rights and Freedoms. In this decision, the Court held that a union's ability to, among other things, make and distribute recorded images of individuals crossing a picket line was protected as an expressive right under the Charter and trumped any such individuals' privacy rights under the Act. The Court, most notably, also held that the Act was unconstitutional, and that the protections afforded thereunder cannot be equated to being constitutional in nature.

Background

During a strike at the Palace Casino in Edmonton, the United Food and Commercial Workers, Local 401 Union (UFCW) took video and camera recordings of the picket line and posted signs in the area stating that images of those who crossed the picket line might be placed online. An adjudicator appointed by the Alberta Information and Privacy Commissioner under the Act held that the collection or use of personal information by the UFCW, other than for use in an investigation or legal proceeding, contravened the Act. The UFCW subsequently sought judicial review of this decision. Agreeing with the UFCW, the chambers judge concluded that the Act "purposely and directly" limited the UFCW's freedom of expression, and declared certain portions of the Act unconstitutional. The Attorney General of Alberta appealed this decision to the Alberta Court of Appeal.

The Court's Decision

As the Supreme Court of Canada had previously held that the freedom of expression encompasses the ability to collect information that is to be distributed when the distribution constitutes an expressive activity, the Court of Appeal found that the prohibition of the UFCW's dealings with the recordings of its picket line was a direct infringement of its freedom of expression.

While the Court acknowledged the substantial importance of protecting society's reasonable expectations of privacy and limiting the misuse of personal information, it emphasized that the application of the Act must be sensitive to its impact on the Charter-protected right to free expression. Indeed, it held that the protection of personal information is no more important than collective bargaining, the rights of workers to organize, and the right of the union to communicate its message to the public.

In assessing the constitutionality of the Act, the Court held that the Act was over-broad on account of the following:

• "It covers all personal information of any kind, and provides no functional definition of that term. ... The Commissioner has not to date narrowed the definition in his interpretation of the Act in order to make it compliant with Charter values.
• The Act contains no general exception for information that is personal, but not at all private. For example, the comparative statutes in some provinces exempt activity that occurs in some public places.
• The definition of 'publicly available information' is artificially narrow.
• There is no general exemption for information collected and used for free expression.
• There is no exemption allowing organizations to reasonably use personal information that is reasonably required in the legitimate operation of their businesses."

Accordingly, the Court affirmed the chamber judge's order quashing the offending portions of the Adjudicator's decision, and deferred to the Legislature of Alberta to make the appropriate amendments to the Act to bring it in line with the Charter.

Implications

The Alberta Information and Privacy Commissioner has sought leave to appeal the Court's decision to the Supreme Court of Canada.³ In the event that leave is not granted, this decision will circumscribe the privacy protections afforded under the Act, and will thus have a significant effect on this statute, along with other statutes that are substantially similar thereto.⁴ As a result, businesses are encouraged to: (i) monitor possible developments with respect to this decision at the Supreme Court and the Legislature of Alberta; and (ii) amend their privacy policies accordingly.

Notes

1. 2012 ABCA 130.
2. SA 2003, c. P-6.5.
3. http://www.oipc.ab.ca/Content_Files/Files/News/NR_UFCW_SCC_Jun_4_2012.pdf
4. For example the British Columbia Personal Information Protection Act, SBC 2003, c. 63 and the Personal Information Protection and Electronic Documents Act, SC 2000, c. 5.