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 www.casinoscabs.ca.
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.
Regards,
Blair
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