Monday, November 18, 2013

Top Court Rules Union's Right to Picket Trumps Individuals' Right to Privacy

During a lawful strike that lasted 305 days, both the United Food and Commercial Workers, Local 401 ("Union") and a security company hired by the Palace Casino at West Edmonton Mall in Alberta. videotaped and photographed the picket line near the entrance to  the casino.  The Union posted signs in the area of the picketing stating that images of persons crossing the picket line might be placed on a website called
Several individuals who were recorded crossing the picket line filed complaints with the Alberta Information and Privacy Commissioner under the Personal Information Protection Act of Alberta ("PIPA").  PIPA restricts the collection, use and disclosure of personal information by a range of organizations. 
The Vice-President of the casino complained he was photographed or videotaped and that two pictures of him were used on a poster displayed at the picket line with the text, "This is (X's) police mug shot."   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 videotaped while working near the casino entrance.  No recordings of the complainants were placed on the website.
The privacy commissioner appointed an adjudicator to decide whether the Union had contravened 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 section 2(b) of the Charter of Rights and Freedoms ("Charter") which provides that, "Everyone has the following fundamental freedoms:...(b)  freedom of thought, belief, opinion and expression, including of freedom of the press and other media of communication".  The Alberta Court of Appeal agreed and granted the Union a constitutional exemption from the application of PIPA.  The employer appealed this finding to the Supreme Court of Canada. 
The Supreme Court substantially dismissed the appeal.  [Alberta (Information and Privacy Commission) v. United Food and Commercial Workers, Local 401 2013 SCC 62]
The Court held that PIPA establishes a general rule that organizations cannot collect, use or disclose personal information without consent.  None of PIPA's exemptions permitted the Union to collect, use and disclose personal information for the purpose of advancing its interests in a labour dispute.  The court held that the central issue in this case was whether PIPA achieved a constitutionally acceptable balance between the interests of individuals and controlling the collection, use and disclosure of their personal information and a union's freedom of expression.  To the extent that PIPA restricted collection for legitimate labour relations purposes, it breached section 2(b) of the Charter and could not be justified under section 1.  Section 1 provides that, "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
The court found that 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 is to ensure individual autonomy, dignity and privacy, which are significant social values. 
However, the court also found that PIPA did not include any mechanisms by which a union's constitutional right to freedom of expression could be balanced with the interests protected by the legislation.  There is a long recognized fundamental importance of freedom of expression in the context of labour disputes.  The court found that PIPA prohibited 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.  The court found that PIPA imposed 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 was disproportionate to the government's objective of providing individuals with control over the personal information that they exposed by crossing a picket line.  It was therefore not justified under section 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 Alberta legislature could consider the Act as a whole.  The declaration of invalidity was granted by the court but was suspended for a period of 12 months to give the legislature the opportunity to decide how best to make the legislation constitutionally compliant.  

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