CANADA—Court of Appeal issues decision

In a highly anticipated case, the Court of Appeal of Alberta issued its decision in

on April 30. This case involved videotaping and the taking of photographs by the United Food and Commercial Workers Union at a picket line during a strike. The union had posted a sign stating that images of those who crossed the picket line might be placed on a website, although the union never actually posted any such pictures or videos. Several individuals—including employees and officers of the employer as well as members of the public—filed complaints with the office of the Alberta Information and Privacy Commissioner (OIPC) alleging that the union had collected, used and/or disclosed their personal information in violation of the Personal Information Protection Act (PIPA).

During the investigation by the OIPC’s adjudicator, the union argued that it was entitled to record persons crossing the picket line for two reasons; the recording of the picket line was done for “journalistic purposes”; therefore, its activities were completely outside the operation of PIPA under Section 4 and in anticipation of legal proceedings; e.g., before the Labour Relations Board, or for investigations arising out of the strike. The adjudicator rejected the argument that the union’s activities were exempt from the operation of PIPA because they were related to “journalistic purposes”; while the information was in part being used for journalistic purposes, the union was also collecting the information for other non-exempt purposes and some of the collected images had not been used for investigative or legal purposes; e.g., images of the employer’s vice president had been placed on a mock poster and used in other satirical ways. The adjudicator ruled that the collection or use of personal information by the union was contrary to PIPA and ordered that the union stop collecting information for those unauthorized purposes and to destroy any such information still in its possession.

The union applied for a

to the Court of Queen’s Bench, arguing that, to the extent PIPA prevented the collection of the disputed images, there was an infringement of its charter rights. The judge determined that the narrow exceptions provided for “publicly available” information and information collected “for journalistic purposes” exacerbated the effect that PIPA had on the union’s freedom of expression and observed that if there were two possible interpretations of the statute, the court should adopt the one that would render the statute constitutional. The judge concluded that PIPA could be rendered more constitutionally compliant by adopting an extremely broad definition of “journalism”—the exception for journalistic purposes should not be limited to the traditional media but should also include informing the public and picketing union members, dissuading people from crossing the picket line, supporting morale on the picket line, training union members and providing material to other unions for educational purposes.

The Alberta Court of Appeal upheld the Court of Queen’s Bench

, although it noted that, in this case, it was not helpful to try and force what the union was trying to do into the “journalism” exemption—the appeal was allowed only to the extent that the remedy granted by the chambers judge should be varied; i.e., in place of the declarations of invalidity, there will be a declaration that the application of PIPA to the activities of the union was unconstitutional. The court found that the constitutional problems with PIPA arise because of its breadth; it does not appear to have been drafted in a manner that is adequately sensitive to protected charter rights. There are a number of aspects to the over-breadth of PIPA. It covers all personal information of any kind and provides no functional definition of that term—the definition of “personal information” as “information about an identifiable individual” is essentially circular—and PIPA contains no general exception for information that is personal but not at all private.

The court determined that while the protection of personal information is important, it is no more important than collective bargaining and the rights of workers to organize and the right of the union to communicate its message to the public. It noted that the privacy interest being protected here is minimal; persons who were videotaped were in a public place, crossing an obvious picket line, in the face of warning signs that images were being collected; therefore, the privacy expectations were very low and protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted from the adjudicator’s order.

There is no general exception in PIPA for information collected and used for free expression or allowing the reasonable use of personal information for legitimate business operations; therefore, the adjudicator’s decision is unsustainable as the effect of PIPA on the union’s expressive rights cannot be justified in a free and democratic society. The court found that the appropriate remedy is not to strike down any portion of PIPA; it is within the mandate of the legislature to decide what PIPA amendments are required to bring it in line with the charter.

The Office of the Information and Privacy Commissioner will apply to the Supreme Court of Canada for leave to appeal the Court of Appeal’s decision. The commissioner noted that the court's decision has significant implications for the rights of Albertans, with broader implications for substantially similar legislation across Canada.

This decision provides both employers and unions with greater opportunity to take photographs and create videos of activities at the picket line. While such activity was already permissible for the purposes of collecting evidence, this decision may increase the range of purposes for such videos or photographs to include employer’s freedom of expression; e.g., to promote is business interests. While this decision did not discuss the need for any notice for such collection, it remains good practice to ensure that a notice is provided that such collection will take place.