Freedom of Expression in Labour Dispute Trumps Privacy Laws

The Supreme Court of Canada’s recent decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, reaffirms the fundamental right to freedom of expression during labour disputes, even at the expense of personal privacy.

In this case, a lengthy labour dispute resulted in a lawful strike. In an attempt to strengthen its bargaining position, the Union videotaped and photographed workers crossing the picket line and displayed some of these photographs in its posters and newsletters.  Several workers who were recorded crossing the picket line filed complaints with Alberta’s Privacy Commissioner.

Initially, an Adjudicator ordered the Union to stop recording the personal information of workers.  This decision was overturned on judicial review, and was upheld by the Alberta Court of Appeal, on the basis that the personal information was used for “expressive purposes.”  The Union was protected under section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).

The Supreme Court upheld the Court of Appeal’s decision that PIPA (“Personal Information Protection Act”) unjustifiably limits a union’s right to freedom of expression. Even when balanced against the objectives of privacy laws, the breach was not justified as a “reasonable limit” on the right to freedom of expression under section 1 of the Charter. Since PIPA deemed virtually all personal information to be protected regardless of context, the Court struck down the entirety of the legislation on the basis that it was overbroad.  The declaration of invalidity is suspended for 12 months to give Alberta’s legislature time to decide how to make the legislation constitutional.

In reaching its decision, the Supreme Court recognized the importance of picketing as a crucial form of expression for unions.  It is clear that a union is permitted to impose a significant amount of public or economic pressure on workers in an effort to resolve a labour dispute. The Supreme Court noted that “such pressure is permissible as long as it does not rise to the level of a tortious or criminal act.”

The Supreme Court’s decision has significant implications for privacy legislation in British Columbia, Manitoba and Quebec, which will likely require similar amendments to Alberta.  The Atlantic Canadian provinces have not enacted private sector privacy legislation, and therefore, are governed by federal legislation, PIPEDA.  The federal legislation only applies to those organizations which are engaged in commercial activities, whereas PIPA applies to all organizations.  The Supreme Court’s decision will not affect PIPEDA to the same extent as PIPA, due to its more limited scope.