On November 15, 2013 the Supreme Court of Canada weighed in on the complex issue of privacy on the picket line. The case is Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 and arose in the context of a lawful strike by the United Food and Commercial Workers Union, Local 401 (the “UFCW” or the “Union”) in Alberta.
The UFCW represents employees at the Palace Casino at West Edmonton Mall. The employees engaged in a lawful strike that lasted some 305 days and, in the course of the labour disruption, the Union video recorded and photographed individuals crossing its picket line. The Union posted signs in the area of the picketing stating that images of persons crossing the picketline might be placed on a website called www.casinoscabs.ca.
Several individuals whose images were captured complained to the Information and Privacy Commissioner of Alberta that the Union’s activities contravened the Personal Information Protection Act, S.A. 2003, c. P-6.5 (“PIPA”). The Court noted:
The Vice-President of the Casino complained that he was photographed or video-taped and that two pictures of him were used on a poster displayed at the picketline with the text: “This is [x’s] Police Mugshot.” 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 video-taped while working near the Casino entrance. No recordings of the complainants were placed on the website.
The Union argued that the PIPA was unconstitutional and, specifically, contrary to section 2(b) (freedom of expression) of the Canadian Charter of Rights and Freedoms and, as such, was of no force or effect in the circumstances. Unfortunately, the Adjudicator did not have jurisdiction to consider the constitutionality of the legislation.
That said, the Adjudicator did conclude that “the Union’s collection, use and disclosure of private information was for an expressive purpose” and that“one of the primary purposes of the Union’s information collection was to dissuade people from crossing the picket line”.
Notwithstanding these conclusions, the Union was ordered to stop collecting the personal information for any purposes other than a possible investigation or legal proceeding and to destroy any personal information it had in its possession that had been obtained in contravention of the Act.
The Union sought judicial review of the Order and the Chambers Judge held that “PIPA, as interpreted by the Adjudicator, directly limited the Union’s freedom of expression by preventing the Union from collecting, using, and disclosing personal information obtained about individuals while they were in public view.”
The matter was appealed to the Court of Appeal who held that PIPA was “overbroad”. The Supreme Court of Canada put the findings as follows:
The privacy interest at stake was minor since the complainants were in a public place, crossing a picket line, and had notice that images were being collected. On the other side of the balance was the right of workers to engage in collective bargaining and of the Union to communicate with the public.
The Court of Appeal agreed with the Chambers Judge that PIPA violated section 2(b) of the Charter.
The Supreme Court of Canada
The Court dismissed the appeal and found PIPA to be unconstitutional and an unreasonable restriction on the Union’s freedom of expression which contravened the Charter.
In doing so, the Court recognized that “the collection, use and disclosure of personal information by the Union in the context of picketing during a lawful strike is inherently expressive.” In other words:
Recording conduct related to picketing and, in particular, recording a lawful picketline and any individuals who crossed it, is expressive activity: its purpose was to persuade individuals to support the Union. So too is recording and potentially using or distributing recordings of persons crossing the picketline for deterring people from crossing the picketline and informing the public about the strike.
The Court, after analyzing the legislation in some detail, concluded, without any difficulty, that PIPA restricted freedom of expression.
As is required in Charter cases, the Court then conducted a section 1 analysis. According to the Court:
At this stage, we must determine whether PIPA serves a pressing and substantial objective and, if so, whether its provisions are rationally connected to that objective, whether it impairs the right to freedom of expression no more than is necessary, and whether its effects are proportionate to the government’s objective.
The Court found, again without much difficulty, that PIPA has a pressing and substantial objective, namely, providing an individual with some measure of control over his or her personal information (the Court characterized this as a quasi-constitutional interest “because of the fundamental role privacy plays in the preservation of a free and democratic society"). It went further and stated that, in modern society “where new technologies give organizations an almost unlimited capacity to collect personal information, analyze it, use it and communicate it to others for their own purposes”.
PIPA is rationally connected to this important objective but, in the Court’s view, went too far and were disproportionate to the benefits the legislation sought to promote. The Court observed:
PIPA does not provide any way to accommodate the expressive purposes of unions engaged in lawful strikes. Indeed, the Act does not include any mechanisms by which a union’s constitutional right to freedom of expression may be balanced with the interests protected by the legislation. As counsel for the Commissioner conceded during oral submissions, PIPA contains a general prohibition of the Union’s use of personal information (absent consent or deemed consent) to further its collective bargaining objectives. As a result, PIPA deems virtually all personal information to be protected regardless of context.
In the context of this particular case,
The personal information was collected by the Union at an open political demonstration where it was readily and publicly observable. Those crossing the picketline would reasonably expect that their image could be caught and disseminated by others such as journalists, for example. Moreover, the personal information collected, used and disclosed by the Union was limited to images of individuals crossing a picketline and did not include intimate biographical details. No intimate details of the lifestyle or personal choices of the individuals were revealed.
PIPA is, somewhat of a blunt instrument where it prohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes related to labour relations.
The Court commented in direct terms:
Free expression in the labour context can also play a significant role in redressing or alleviating the presumptive imbalance between the employer’s economic power and the relative vulnerability of the individual worker: Pepsi, at para. 34. It is through their expressive activities that unions are able to articulate and promote their common interests, and, in the event of a labour dispute, to attempt to persuade the employer.
As this Court found in Pepsi, the free flow of expression by unions and their members during a labour dispute plays an important role in bringing issues relating to labour conditions into the public arena for discussion and debate”
The Court relied upon some cases that have held that peaceful picketing is the expressive element of of legal strike, and protected under the Charter.
Insofar as PIPA restricts a union’s ability to collect, use or disclose personal information during the course of a lawful strike, it is a violation of section 2(b) of the Charter and is not saved by section 1. That said, the Court suspended the declaration of invalidity of PIPA for a period of 12 months to give the legislature time to decide how best to make the legislation constitutional.
The Supreme Court of Canada has continued its trend of enlarging the scope of Charter protection afforded to Union’s engaged in lawful activities (in this case, a strike), even when these conflict with other societal values (privacy). While acknowledging the important objectives of PIPA. the Court concluded the restrictions went too far (they were disproportionate in the circumstances of this case to the legislation’s objectives).
This case is important as further defines the scope of the constitutional protection afforded to Unions and their members when engaged in lawful conduct. Other cases from the Supreme Court of Canada include RWDSU v. Dolphin Delivery Ltd.  2 SCR 573, U.F.C.W., Local 1518, v. KMart Canada Ltd.  2 SCR 1083, Dunmore v. Ontario (Attorney General)  3 SCR 1016 R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd.  1 SCR 156, Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia  2 SCR 391 and Ontario (Attorney General) v. Fraser  2 SCR 3.