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Supreme Court of Canada finds Alberta's privacy law in violation of section 2(b) – the right to freedom association – of the Charter, insofar as it restricts a union’s ability to collect, use or disclose personal information during the course of a lawful strike.
Ottawa (18 Nov. 2013) – The Supreme Court of Canada (SCC) struck down Alberta's privacy law as unconstitutional on November 15 in a case which centred around the video taping by United Food and Commercial Workers (UFCW Canada) of scabs crossing the union's picket line during a long strike in 2006.
The 305-strike was against the Palace Casino at the West Edmonton Mall where UFCW Canada Local 401 represented the striking workers. Several of the scabs filed complaints over being video taped with the Information and Privacy Commissioner of Alberta. An adjudicator initially ruled the union had violated Alberta’s privacy law, but this ruling was appealed and overturned at both the Alberta Court of Queen's Bench and Alberta Court of Appeal. The Privacy Commissioner then appealed to the SCC.
Alberta's privacy law restricts workers' Charter right to freedom of association
In its unanimous decision, the SCC found Alberta's Personal Information Protection Act (PIPA) in violation of section 2(b) – the right to freedom association – of the Canadian Charter of Rights and Freedoms, insofar as it restricts a union’s ability to collect, use or disclose personal information during the course of a lawful strike.
The Supreme Court decision stated:
“PIPA imposes 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. In our view, this infringement of the right to freedom of expression is disproportionate to the government’s objective of providing individuals with control over personal information that they expose by crossing a picket line.
Accordingly, we would answer the constitutional questions as follows:
1. Do the Personal Information Protection Act, S.A. 2003, c. P-6.5, and the Personal Information Protection Act Regulation, Alta Reg. 366/2003, violate s. 2(b) of the Canadian Charter of Rights and Freedoms insofar as they restrict a union’s ability to collect, use or disclose personal information during the course of a lawful strike?
Yes."
The SCC declared PIPA to be invalid but suspended the declaration of invalidity for a period of 12 months to give the Alberta legislature time to decide how best to make the legislation constitutional. UFCW Canada was awarded costs throughout.
Decision likely to impact on another SCC case involving federal privacy legislation
The SCC decision will likely impact on another case which was heard at the SCC earlier this month involving whether a federal government employee's privacy rights takes precedent over the Charter's right to freedom of association. The case centres around a Rand formula 'non-member' of the Professional Institute of the Public Service Canada (PIPSC) who does not want the union to have her address or telephone number.
The individual is arguing her rights under the federal Privacy Act, as well as the Section 2. (d) of the Charter are violated because the employer has given her contact information to PIPSC. PIPSC has taken the position that because of its duty of fair representation, the union is required by law to represent the woman and therefore need the information to contact her. The Federal Court of Appeal dismissed the challenge in 2012 but the member, who is representing herself, was successful in appealing the decision to the Supreme Court of Canada.
More information:
Canadian Foundation for Labour Rights
NUPGE
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