On November 15, 2013, the Supreme Court of Canada struck down the Alberta Personal Information Protection Act (PIPA). The Court’s declaration is suspended for 12 months to give the Alberta legislature time to decide how best to revise the statute. For BC employers, this decision raises important questions: what will lawmakers change and what will this mean for BC’s similar private sector privacy legislation (the BC PIPA)?
During a contentious work stoppage in Edmonton, a union recorded and photographed individuals crossing a picket line. Some individuals complained to the Alberta Information and Privacy Commissioner that this was a breach of their privacy. The IPC adjudicator found that none of the narrow exemptions under the PIPA were engaged and therefore that the union’s actions contravened the PIPA.
The Court found with little difficulty that the PIPAcontravened Section 2(b) of the Canadian Charter of Rights and Freedoms. The union’s purpose in collecting the complainants’ personal information was to persuade individuals not to cross the picket line. The Court confirmed this important type of expressive activity is protected under Section 2(b). The Court agreed that the PIPA’s purpose of providing individuals with some measure of control over their personal information is a pressing and substantial objective. However, the statute’s broad limitations on freedom of expression are not demonstrably justified under Section 1 of the Charter, as the price PIPA exacts is disproportionate to the benefits it promotes.
Organizations in Alberta were likely satisfied by this finding, considering the lack of flexibility and limited exceptions to consent under the current PIPA. The Alberta Court of Appeal has commented on multiple occasions that the PIPAin its current form is not functional; the minimal consideration provided by the scope exemptions and exceptions to consent provide little understanding of context and individual circumstances. The Supreme Court of Canada has confirmed that the PIPA is quasi-constitutional insofar as it protects informational privacy. However, the legislative aim of data protection, extends to all personal information, regardless of whether the individual has made any attempt to keep it private.
In short, the PIPA is in need of overhaul and would likely benefit from a wholesale re-write. That said, given the extent to which the Court’s reasoning focussed on the unionized environment and the significant public interest in freedom of expression in the context of labour disputes, it is entirely possible the legislation could remain largely unchanged, but for an exception for lawful labour relations or an exception for attendance at public events as contemplated by the BC PIPA. However, the Alberta Commissioner and Attorney General asked that the entire act be struck down rather than specific provisions, which may suggest that broader reform is under consideration.
This decision also may serve as a jumping-off point for a constitutional challenge to the BC PIPA, which is similar to the Alberta statute in many respects. It is unclear whether the BC legislature will make proactive changes, perhaps paralleling any Alberta amendments, or will wait for such a challenge. In a recent press release Commissioner Elizabeth Denham has already indicated a willingness to discuss with the provincial government how to balance the BC PIPAwith freedom of expression related to union picketing activity, which suggests the more narrow approach.
Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 63.
For questions relating to the information presented in this article, please contact Frances Doyle, Partner.