Information v. Privacy Commissioner of Alberta, 2013 SCC 62

SUPREME COURT OF CANADA Citation: Alberta (Information and Privacy Commissioner) v.

United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733 Date: 20131115 Docket: 34890 Between: Information and Privacy Commissioner of Alberta Appellant and United Food and Commercial Workers, Local 401 Respondent AND BETWEEN: Attorney General of Alberta Appellant and United Food and Commercial Workers, Local 401 Respondent - and - Attorney General of Canada, Attorney General of Ontario, Privacy Commissioner of Canada, Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Information and Privacy Commissioner of Ontario, Coalition of British Columbia Businesses, Merit Canada, Information and Privacy Commissioner of British Columbia and Alberta Federation of Labour Interveners Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

Joint Reasons for Judgment: (paras. 1 to 42) Abella and Cromwell JJ. (McLachlin C.J. and LeBel, Fish, Rothstein, Moldaver, Karakatsanis and Wagner JJ. concurring) Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733 Information and Privacy Commissioner of Alberta Appellant v. United Food and Commercial Workers, Local 401 Respondent - and -

Attorney General of Alberta Appellant v. United Food and Commercial Workers, Local 401 Respondent and Attorney General of Canada, Attorney General of Ontario, Privacy Commissioner of Canada, Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Information and Privacy Commissioner of Ontario, Coalition of British Columbia Businesses, Merit Canada, Information and Privacy Commissioner of British Columbia, and Alberta Federation of Labour Interveners Indexed as: Alberta (Information and Privacy Commissioner) v.

United Food and Commercial Workers, Local 401 2013 SCC 62 File No.: 34890. 2013: June 11; 2013: November 15. Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. on appeal from the court of appeal for alberta Constitutional law — Charter of rights — Freedom of expression — Labour relations — Privacy — Union video-taping and photographing individuals crossing its picket line for use in its labour dispute — Whether legislation restricting the collection, use and disclosure of personal information violates union’s expressive right under s. 2(

b) of Charter and, if so, whether violation is justified — Canadian Charter of Rights and Freedoms, ss. 1 , 2(b) — Personal Information Protection Act, S.A. 2003, c. P-6.5 — Personal Information Protection Act Regulation, Alta. Reg. 366/2003 . During a lawful strike lasting 305 days, both the Union and the employer video-taped and photographed individuals crossing the picketline. The Union posted signs in the area of the picketing stating that images of persons crossing the picketline might be placed on a website.

Several individuals who were recorded crossing the picketline filed complaints with the Alberta Information and Privacy Commissioner. The Commissioner appointed an Adjudicator to decide whether the Union had contravened the Personal Information Protection Act ( 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 s. 2(

b) of the Charter . The Court of Appeal agreed and granted the Union a constitutional exemption from the application of PIPA . Held : The appeal is substantially dismissed. PIPA establishes a general rule that organizations cannot collect, use or disclose personal information without consent. None of PIPA ’s exemptions permit the Union to collect, use and disclose personal information for the purpose of advancing its interests in a labour dispute.

The central issue is whether PIPA achieves a constitutionally acceptable balance between the interests of individuals in controlling the collection, use and disclosure of their personal information and a union’s freedom of expression. To the extent that PIPA restricts collection for legitimate labour relations purposes, it is in breach of s. 2(

b) of the Charter and cannot be justified under s. 1 . 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 of providing an individual with this measure of control is intimately connected to individual autonomy, dignity and privacy, self-evidently significant social values. But 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.

This Court has long recognized the fundamental importance of freedom of expression in the context of labour disputes. PIPA prohibits 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. PIPA imposes r estrictions 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 is disproportionate to the government’s objective of providing individuals with control over the personal information that they expose by crossing a picketline. It is therefore not justified under s. 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 legislature can consider the Act as a whole.

The declaration of invalidity is therefore granted but is suspended for a period of 12 months to give the legislature the opportunity to decide how best to make the legislation constitutionally compliant.

Cases Cited Referred to: Order P2010-003; Synergen Housing Co-op Ltd., ; Lavigne v. Canada (Office of theCommissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Dagg v. Canada (Minister of Finance), (SCC), [1997] 2 S.C.R. 403; H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2006 SCC 13, [2006] 1 S.C.R. 441;R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156; U.F.C.W., Local 1518 v. KMartCanada Ltd., (SCC), [1999] 2 S.C.R. 1083; Ontario (Attorney General) v.

Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3;Reference re Public Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313; Great Atlantic & Pacific Co. ofCanada, [1994] O.L.R.B. Rep. March 303; R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30; Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679. Statutes and Regulations Cited Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3. Canadian Charter of Rights and Freedoms, ss. 1, 2(b). Personal Information Protection Act, S.A. 2003, c.

P-6.5, ss. 1(1)(i) “organization”, (k) “personal information”, 3, 4(1), (3)(a), (b), (c),7(1), 14(d), (e), 17(d), (e), 20(f), (j), (m), 56(2), (3). Personal Information Protection Act Regulation, Alta. Reg. 366/2003, s. 7. Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 26(2)(b). Authors Cited Adams, George W. Canadian Labour Law, 2nd ed., vol. 1. Aurora, Ont.: Canada Law Book, 1993 (loose-leaf updated June 2013,release 46). Canada. Report of a Task Force established jointly by Department of Communications/Department of Justice. Privacy and Computers.

Ottawa: Information Canada, 1972. Craig, John D. R. “Invasion of Privacy and Charter Values: The Common-Law Tort Awakens” (1997), 42 McGill L.J. 355. Drapeau, Michel W., and Marc-Aurèle Racicot. Protection of Privacy in the Canadian Private and Health Sectors 2013. Toronto: Carswell, 2012. Gratton, Éloïse. Understanding Personal Information: Managing Privacy Risks. Markham, Ont.: LexisNexis, 2013. Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp., vol. 2. Toronto: Thomson/Carswell, 2007 (updated 2012, release 1). Hunt, Chris D.

L. “Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for the Development ofCanada’s Fledgling Privacy Tort” (2011), 37 Queen’s L.J. 167. International Labour Organization. Report of the Director-General: Freedom of association in practice: Lessons learned. Geneva: International Labour Office, 2008(online:http://www.ilo.org/wcmsp5/groups/public/@dgreports/@dcomm/documents/publication/wcms_096122.pdf). MacNeil, Michael. “Unions and the Charter: The Supreme Court of Canada and Democratic Values” (2003), 10 C.L.E.L.J. 3. Rayner, Wesley B. Canadian Collective Bargaining Law, 2nd ed.

Markham, Ont.: LexisNexis, 2007. APPEAL from a judgment of the Alberta Court of Appeal (Slatter and McDonald JJ.A. and Read J. (ad hoc)), 2012 ABCA130, 57 Alta. L.R. (5th) 249, 522 A.R. 197, 544 W.A.C. 197, 349 D.L.R. (4th) 654, 258 C.R.R. (2d) 110, 33 Admin. L.R. (5th) 321,[2012] 6 W.W.R. 211, 2012 CLLC ¶210-025, [2012] A.J. No. 427 (QL), 2012 CarswellAlta 760, allowing in part (only to the extent theremedy was varied) a decision of Goss J., 2011 ABQB 415, 53 Alta. L.R. (5th) 235, 509 A.R. 150, 339 D.L.R. (4th) 279, 32 Admin. L.R.(5th) 107, [2012] 4 W.W.R. 324, 2011 CLLC ¶210-055, [2011] A.J.

No. 940 (QL), 2011 CarswellAlta 1486, setting aside a decision ofthe Information and Privacy Commissioner, Order P2008-008, . Appeal substantially dismissed. Glenn Solomon, Q.C., and Robert W. Armstrong, for the appellant the Information and Privacy Commissioner of Alberta. Roderick Wiltshire, for the appellant the Attorney General of Alberta. Gwen J. Gray, Q.C., and Vanessa Cosco, for the respondent. Sean Gaudet, for the intervener the Attorney General of Canada. Rochelle S. Fox and Sara Weinrib, for the intervener the Attorney General of Ontario.

Mahmud Jamal, Patricia Kosseim, Regan Morris and Kirk Shannon, for the intervener the Privacy Commissioner ofCanada. Patricia D. S. Jackson and Sarah Whitmore, for the intervener the Canadian Civil Liberties Association. Lindsay M. Lyster, for the intervener the British Columbia Civil Liberties Association.

William S. Challis , for the intervener the Information and Privacy Commissioner of Ontario. Simon Ruel , for the interveners the Coalition of British Columbia Businesses and Merit Canada. Written submissions only by Nitya Iyer , for the intervener the Information and Privacy Commissioner of British Columbia. David Williams and Kristan McLeod , for the intervener the Alberta Federation of Labour.

The judgment of the Court was delivered by Abella and Cromwell JJ. — Overview [ 1 ] This appeal requires the Court to determine whether Alberta’s Personal Information Protection Act unjustifiably limits a union’s right to freedom of expression in the context of a lawful strike.

At issue is whether the Act achieves a constitutionally acceptable balance between the interests of individuals in controlling the collection, use and disclosure of their personal information and a union’s freedom of expression. [ 2 ] The dispute in this case arose when the United Food and Commercial Workers, Local 401 recorded and photographed individuals crossing its picketline for use in its labour dispute.

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 ”), which restricts the collection, use and disclosure of personal information by a range of organizations. Those individuals were successful, prompting an application for judicial review on the basis that the legislation infringed the Union’s right to freedom of expression under s. 2(

b) of the Canadian Charter of Rights and Freedoms and that this infringement was not justified under s. 1 . [ 3 ] In our view, the legislation violates s. 2 (

b) because its impact on freedom of expression in the labour context is disproportionate and the infringement is not justified under s. 1 . Facts [ 4 ] The Union represents employees at the Palace Casino at West Edmonton Mall in Alberta. In 2006, during a lawful strike which lasted 305 days, both the Union and a security company hired by the employer video-taped and photographed the picketline near the main entrance to the Casino.

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. [ 5 ] Several individuals who were recorded crossing the picketline filed complaints with the Alberta Information and Privacy Commissioner under PIPA .

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. [ 6 ] The Commissioner appointed an Adjudicator to decide whether the Union, in collecting, using and disclosing personal information about individuals without their consent had contravened PIPA . In Alberta, the Administrative Procedures and Jurisdiction Act , R.S.A. 2000, c. A-3, and accompanying regulations prevent the Commissioner from deciding questions of constitutional law. As a result, the Adjudicator lacked jurisdiction to consider the Union’s arguments on the constitutionality of PIPA or its application to the Union’s activities.

The Adjudicator accepted the Union’s evidence that it is common practice in Alberta for both employers and unions to video-tape and photograph picketlines and that the Union did so for the following reasons: • informing the public about the strike, including through pamphlets, newsletters and a website; • informing picketing Union members about the strike, including through pamphlets, newsletters and a website; • dissuading people from crossing the picketline; • acting as a deterrent to violence from non-picketers; • gathering evidence should it become relevant to an investigation or legal proceeding (both of altercations as well as to show long periods of peaceful picketing); • creating material for use as a training tool for Union members;

• providing material to other unions for educational purposes; • supporting morale on the picket line with the use of humour; • responding to similar activity on the part of the employer; and • deterring theft of Union property. (Order P2008-008; United Food and Commercial Workers, Local 401, (AB OIPC), at para. 20) The Adjudicator concluded that “many of these purposes also promoted the underlying purpose of the strike — that of achieving aresolution to the labour dispute [in favour] of the Union”: para. 20.

The Adjudicator concluded that the Union’s collection, use anddisclosure of private information was for an expressive purpose. As she put it, “one of the primary purposes of the Union’s informationcollection was to dissuade people from crossing the picket line”: para. 51. She also concluded that she was not aware of, and had notbeen referred to, any provisions of PIPA that would authorize collection, use and disclosure of personal information for that purpose:para. 67.

She rejected the Union’s claim that it was covered by the “journalistic purposes” exemption because its activities were alsoaimed at resolving the labour dispute in its favour. The “journalistic purposes” exemption in the Act therefore did not apply to the extentthat the information was collected, used or disclosed for other purposes. The Union’s ancillary argument — that the collection, use anddisclosure of personal information was authorized under another exemption — a possible investigation or legal proceeding — wasaccepted, but was not sufficient to exempt the Union’s activity from PIPA for any other purpose.

The Union was ordered to stopcollecting the personal information for any purposes other than a possible investigation or legal proceeding and to destroy any personalinformation it had in its possession that had been obtained in contravention of the Act. [7] On judicial review, the Union argued that the provisions of PIPA that prevent it from collecting, using anddisclosing personal information obtained from its lawful picketline infringed s. 2(

b) of the Charter (2011 ABQB 415, 53 Alta. L.R. (5th)235). The chambers judge found that the Union’s activity had expressive content and that there was no reason to exclude it from theprotection of s. 2(b). She found that PIPA, as interpreted by the Adjudicator, directly limited the Union’s freedom of expression bypreventing the Union from collecting, using, and disclosing personal information obtained about individuals while they were in publicview.

She also concluded that the breach could not be justified under s. 1. [8] The Court of Appeal was of the view that the real issue in the case was whether it was justifiable to restrainexpression in support of labour relations and collective bargaining activities (2012 ABCA 130, 57 Alta. L.R. (5th) 249). It concludedthat PIPA was overbroad. The privacy interest at stake was minor since the complainants were in a public place, crossing a picketline,and had notice that images were being collected.

On the other side of the balance was the right of workers to engage in collectivebargaining and of the Union to communicate with the public: para. 74. The Court of Appeal agreed with the chambers judge that therewas a breach of s. 2(

b) that could not be saved under s. 1 and it therefore granted the Union a constitutional exemption from theapplication of PIPA. Analysis [9] The stated constitutional questions in this case are: 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 ordisclose personal information during the course of a lawful strike? 2. If so, is the infringement a reasonable limit prescribed by law, which can be demonstrably justified in a free and democratic societyunder s. 1 of the Canadian Charter of Rights and Freedoms? [10] We turn first to the question of whether PIPA limits freedom of expression. This case arises in the specific factualcontext that was before the Adjudicator, but the challenge is to PIPA as a whole.

While there was some debate about whether particularaspects of the conduct engaged in by the Union were protected by s. 2(b), there can be no doubt, in our view, that PIPA limits expressiveactivity that is so protected. The reviewing judge and the Court of Appeal both recognized that the collection, use and disclosure ofpersonal information by the Union in the context of picketing during a lawful strike is inherently expressive. We agree. [11] As the parties conceded, freedom of expression under s. 2(

b) is clearly engaged by the Union’s activities. The Unioncollected personal information by recording the picketline. One of the primary purposes for the Union’s collection of personalinformation was, as the Adjudicator recognized, to dissuade people from crossing the picketline: para. 51; Goss J., at paras. 31-34; Courtof Appeal, at para. 64. Recording conduct related to picketing and, in particular, recording a lawful picketline and any individuals whocrossed it, is expressive activity: its purpose was to persuade individuals to support the Union.

So too is recording and potentially usingor distributing recordings of persons crossing the picketline for deterring people from crossing the picketline and informing the publicabout the strike. [12] To understand how PIPA limited the Union’s expressive activities, it is helpful to review the legislation in some

detail. [13] Alberta’s PIPA was inspired by the federal Personal Information Protection and Electronic Documents Act, S.C.2000, c. 5 (“PIPEDA”). Both pieces of legislation are part of an international movement towards giving individuals better control overtheir personal information: Éloïse Gratton, Understanding Personal Information: Managing Privacy Risks (2013), at pp. 6 ff. PIPEDAgenerally applies to private sector organizations engaged in commercial activities in any province.

It does not apply, however, if theGovernor in Council determines that there is comparable protection in place in the province, as is the case with respect to PIPA inAlberta: PIPEDA, s. 26(2)(b); Michel W. Drapeau and Marc-Aurèle Racicot, Protection of Privacy in the Canadian Private and HealthSectors 2013 (2012), at p. AB-3. [14] PIPA’s stated purpose is almost identical to that of the PIPEDA.

PIPA’s purpose is explicitly set out in s. 3, whichstates that it is to govern the collection, use and disclosure of personal information by organizations in a manner that recognizes both the right of anindividual to have his or her personal information protected and the need of organizations to collect, use or disclose personal informationfor purposes that are reasonable. [15] The scope of PIPA is, however, considerably broader than that of PIPEDA.

Unlike PIPEDA, PIPA’s limitations onthe collection, use and disclosure of personal information are not restricted to those activities undertaken for commercial purposes. Instead, PIPA establishes a general rule that organizations cannot collect, use or disclose personal information without consent: s. 7(1). Except as provided for by PIPA, it “applies to every organization and in respect of all personal information”: s. 4(1). The term“organization” includes a corporation, an unincorporated association, a trade union, a partnership, or an individual acting in a commercialcapacity: s. 1(1)(i).

The term “personal information” is defined broadly to mean “information about an identifiable individual”: s. 1(1)(k). The Commissioner has made it clear that personal information includes information that is not “private”, so that “personalinformation does not lose its character as personal information if the information is widely or publicly known”: Order P2010-003;Synergen Housing Co-op Ltd., (AB OIPC), at para. 17. [16] The breadth of PIPA is mitigated by a series of exemptions. The most relevant include the following.

First, througha restriction on the definition of “organization”, PIPA excludes from its application individuals acting in a “personal or domesticcapacity”: ss. 1(1)(

i) and 4(3)(a). Second, s. 56(2) and (3) operate together so that PIPA does not apply to a non-profit organizationunless that organization collects, uses, or discloses information in connection with a commercial activity. Third, the application provisionindicates that PIPA does not apply in certain circumstances, including when information is collected, used, or disclosed for “artistic orliterary purposes and for no other purpose” (s. 4(3)(b)) or when it is collected, used or disclosed for “journalistic purposes and for noother purpose” (s. 4(3)(c)).

Finally, PIPA creates an exception to the consent requirement where the collection, use or disclosure of theinformation is reasonable for the purposes of an investigation or a legal proceeding (ss. 14(d), 17(d), 20(

f) and (m)) or the information is“publicly available as prescribed or otherwise determined by the regulations” (ss. 14(e), 17(

e) and 20(j)). The term “publicly available”is narrowly defined in s. 7 of the Personal Information Protection Act Regulation, Alta.

Reg. 366/2003, to mean information that isavailable: in a telephone or business directory (or other similar registry); in a record of a quasi-judicial body; or in a magazine, book, ornewspaper. [17] Given the Adjudicator’s finding that none of these exemptions applied to allow the Union to collect, use anddisclose personal information for the purpose of advancing its interests in a labour dispute, we conclude without difficulty that it restrictsfreedom of expression. [18] This brings us to the s. 1 analysis.

At this stage, we must determine whether PIPA serves a pressing and substantialobjective and, if so, whether its provisions are rationally connected to that objective, whether it impairs the right to freedom ofexpression no more than is necessary, and whether its effects are proportionate to the government’s objective.

While PIPA is rationallyconnected to a pressing and substantial objective, its broad limitations on freedom of expression are not demonstrably justified becauseits limitations on expression are disproportionate to the benefits the legislation seeks to promote. [19] There is no dispute that PIPA has a pressing and substantial objective.

The purpose of PIPA is explicitly set out in s.3, as previously noted, which states: 3 The purpose of this Act is to govern the collection, use and disclosure of personal information by organizations in a manner thatrecognizes both the right of an individual to have his or her personal information protected and the need of organizations to collect, use ordisclose personal information for purposes that are reasonable. The focus is on providing an individual with some measure of control over his or her personal information: Gratton, at pp. 6 ff.

Theability of individuals to control their personal information is intimately connected to their individual autonomy, dignity and privacy. These are fundamental values that lie at the heart of a democracy. As this Court has previously recognized, legislation which aims toprotect control over personal information should be characterized as “quasi-constitutional” because of the fundamental role privacy playsin the preservation of a free and democratic society: Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC53 , [2002] 2 S.C.R. 773, at para. 24; Dagg v.

Canada (Minister of Finance), (SCC), [1997] 2 S.C.R. 403, atparas. 65-66; H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), 2006 SCC 13 , [2006] 1 S.C.R. 441, at para. 28. [20] PIPA’s objective is increasingly significant in the modern context, where new technologies give organizations analmost unlimited capacity to collect personal information, analyze it, use it and communicate it to others for their own purposes. There isalso no serious question that PIPA is rationally connected to this important objective.

As the Union acknowledges, PIPA directlyaddresses the objective by imposing broad restrictions on the collection, use and disclosure of personal information. However, in ourview, these broad restrictions are not justified because they are disproportionate to the benefits the legislation seeks to promote. In otherwords, “the Charter infringement is too high a price to pay for the benefit of the law”: Peter W. Hogg, Constitutional Law of Canada(5th ed. Supp.), vol. 2, at p. 38-43. [21] The beneficial effects of PIPA’s goal are demonstrable. PIPA seeks to enhance an individual’s control over his or

her personal information by restricting who can collect, use and disclose personal information without that individual’s consent and thescope of such collection, use and disclosure. PIPA and legislation like it reflect an emerging recognition that the list of those who mayaccess and use personal information has expanded dramatically and now includes many private sector actors.

PIPA seeks to regulate theuse of personal information and thereby to protect informational privacy, the foundational principle of which is that “all informationabout a person is in a fundamental way his own, for him to communicate or retain . . . as he sees fit”: Report of a Task Force establishedjointly by the Department of Communications/Department of Justice, Privacy and Computers (1972), at p. 13. [22] Insofar as PIPA seeks to safeguard informational privacy, it is “quasi-constitutional” in nature: Lavigne, at para. 24;Dagg, at paras. 65-66; H.J. Heinz, at para. 28.

The importance of the protection of privacy in a vibrant democracy cannot be overstated:see John D. R. Craig, “Invasion of Privacy and Charter Values: The Common-Law Tort Awakens” (1997), 42 McGill L.J. 355, at pp.360-61. As Chris D. L. Hunt writes in “Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for theDevelopment of Canada’s Fledgling Privacy Tort” (2011), 37 Queen’s L.J. 167, at p. 217, “[d]emocracy depends on an autonomous,self-actualized citizenry that is free to formulate and express unconventional views.

If invasions of privacy inhibit individuality andproduce conformity, democracy itself suffers.” [23] PIPA also seeks to avoid the potential harm that flows from the permanent storage or unlimited dissemination ofpersonal information through the Internet or other forms of technology without an individual’s consent. [24] Finally, as discussed above, the objective of providing an individual with some measure of control over his or herpersonal information is intimately connected to individual autonomy, dignity and privacy, self-evidently significant social values. [25] The price PIPA exacts, however, is disproportionate to the benefits it promotes.

PIPA limits the collection, use anddisclosure of personal information other than with consent without regard for the nature of the personal information, the purpose forwhich it is collected, used or disclosed, and the situational context for that information. As the Adjudicator recognized in her decision,PIPA does not provide any way to accommodate the expressive purposes of unions engaged in lawful strikes. Indeed, the Act does notinclude any mechanisms by which a union’s constitutional right to freedom of expression may be balanced with the interests protected bythe legislation.

As counsel for the Commissioner conceded during oral submissions, PIPA contains a general prohibition of the Union’suse of personal information (absent consent or deemed consent) to further its collective bargaining objectives. As a result, PIPA deemsvirtually all personal information to be protected regardless of context. [26] But the extent to which significant values were actually impaired in the context of this case must be kept in context. 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 individualscrossing a picketline and did not include intimate biographical details.

No intimate details of the lifestyle or personal choices of theindividuals were revealed. [27] It goes without saying that by appearing in public, an individual does not automatically forfeit his or her interest inretaining control over the personal information which is thereby exposed. This is especially true given the developments in technologythat make it possible for personal information to be recorded with ease, distributed to an almost infinite audience, and storedindefinitely.

Nevertheless, PIPA’s restrictions operate in the context of a case like this one to impede the formulation and expression ofviews on matters of significant public interest and importance. [28] PIPA’s deleterious effects weigh heavily in the balance. What is of the utmost significance in our view is that PIPAprohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes related to labour relations.

These purposes include ensuring the safety of union members, attempting to persuade the public not to do business with an employer andbringing debate on the labour conditions with an employer into the public realm. These objectives are at the core of protected expressiveactivity under s. 2(b). [29] This Court has long recognized the fundamental importance of freedom of expression in the context of labourdisputes: R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 , [2002] 1 S.C.R. 156 (“Pepsi”), atpara. 33. In U.F.C.W., Local 1518 v.

KMart Canada Ltd., (SCC), [1999] 2 S.C.R. 1083 (“KMart”), Cory J., writing forthe Court, held that “[f]or employees, freedom of expression becomes not only an important but an essential component of labourrelations”: para. 25 (emphasis added). [30] Expressive activity in the labour context is directly related to the Charter protected right of workers to associate tofurther common workplace goals under s. 2(

d) of the Charter: Ontario (Attorney General) v. Fraser, 2011 SCC 20 , [2011] 2S.C.R. 3, at para. 38.

As the International Labour Organization observed, “[t]he exercise of freedom of association and collectivebargaining is dependent on the maintenance of fundamental civil liberties, in particular, . . . freedom of opinion and expression”: Reportof the Director-General: Freedom of association in practice: Lessons learned (2008), at para. 34. [31] A person’s employment and the conditions of their workplace can inform their identity, emotional health, and senseof self-worth: Reference re Public Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313, at p. 368.

AsMcLachlin C.J. and LeBel J. recognized in Pepsi, free expression on these issues therefore “contributes to self-understanding, as well asto the ability to influence one’s working and non-working life”: para. 34. [32] Free expression in the labour context can also play a significant role in redressing or alleviating the presumptiveimbalance between the employer’s economic power and the relative vulnerability of the individual worker: Pepsi, at para. 34.

It isthrough their expressive activities that unions are able to articulate and promote their common interests, and, in the event of a labourdispute, to attempt to persuade the employer. [33] Finally, in the labour context, freedom of expression can enhance broader societal interests. As this Court found inPepsi, the free flow of expression by unions and their members during a labour dispute plays an important role in bringing issues relatingto labour conditions into the public arena for discussion and debate: paras. 34-35. As this Court emphasized in Pepsi, free expression

provides “an avenue for unions to promote collective bargaining issues as public ones to be played out in civic society, rather than beingconfined to a narrow realm of individualized economic disputes”: Michael MacNeil, “Unions and the Charter: The Supreme Court ofCanada and Democratic Values” (2003), 10 C.L.E.L.J. 3, at p. 24. [34] Since the Second World War, the Canadian government has recognized that unions have a role to play in theCanadian economy and society more broadly: George W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), vol. 1, at pp. 1-11 to 1-16.

This recognition includes a general acceptance that workers have the right to associate and bargain collectively and that whencollective bargaining breaks down, unions and employers may, in certain circumstances, legitimately exert economic sanctions in orderto facilitate resolution of the dispute in their favour: Wesley B. Rayner, Canadian Collective Bargaining Law (2nd ed. 2007), at pp. 2 and457. [35] Within the labour context, picketing represents a particularly crucial form of expression with strong historical roots.

Strikes and picketlines have been used by Canadian unions to exert economic pressure and bargain with employers for over a century:affidavit of Dr. Jeffery M. Taylor, A.R., vol. IV, at p. 35. The use of picketlines is an invaluable tool in the economic arsenal of workersin the collective bargaining process: Rayner, at p. 483. As Judith McCormack, then Chair of the Ontario Labour Relations Board,explained in Great Atlantic & Pacific Co. of Canada, [1994] O.L.R.B. Rep. March 303: Picketing is . . . part of a group of economic sanctions which are considered key to the scheme of collective bargaining as a whole.

Whilesuch sanctions are not frequently resorted to in the overall landscape of collective bargaining, it is axiomatic that the underlying threat ofsuch economic conflict is what drives the vast majority of uneventful negotiations and contract settlements. [para. 35] [36] The effectiveness of picketlines is dependent on the ability of the union to try to convince the public not to cross thepicketline and do business with the employer.

Cory J. recognized the significance of the role of public opinion in KMart, where heobserved that “it is often the weight of public opinion which will determine the outcome of the dispute”: para. 46. In some cases, thisgoal may be achieved simply by making others aware of the labour dispute. In others, however, a union may achieve its goal by puttingpressure on those who intend to cross the picketline. The imposition of public or economic pressure has come to be accepted as alegitimate price to pay to encourage the parties to resolve their dispute.

As McLachlin C.J. and LeBel J. observed in Pepsi, strikes arenot tea parties: para. 90. This Court has acknowledged that such pressure is permissible as long as it does not rise to the level of atortious or criminal act: Pepsi, at paras. 96 and 101-7. [37] PIPA imposes restrictions on a union’s ability to communicate and persuade the public of its cause, impairing itsability to use one of its most effective bargaining strategies in the course of a lawful strike.

In our view, this infringement of the right tofreedom of expression is disproportionate to the government’s objective of providing individuals with control over personal informationthat they expose by crossing a picketline. [38] This conclusion does not require that we condone all of the Union’s activities. The breadth of PIPA’s restrictionsmakes it unnecessary to examine the precise expressive activity at issue in this case.

It is enough to note that, like privacy, freedom ofexpression is not an absolute value and both the nature of the privacy interests implicated and the nature of the expression must beconsidered in striking an appropriate balance. To the extent that PIPA restricted the Union’s collection, use and disclosure of personalinformation for legitimate labour relations purposes, the Act violates s. 2(

b) of the Charter and cannot be justified under s. 1. [39] 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 ordisclose personal information during the course of a lawful strike? Answer: Yes. 2. If so, is the infringement a reasonable limit prescribed by law, which can be demonstrably justified in a free and democratic societyunder s. 1 of the Canadian Charter of Rights and Freedoms? Answer: No. [40] Both the Information and Privacy Commissioner of Alberta and the Attorney General of Alberta stated in oralargument that if they were unsuccessful, they would prefer that PIPA be struck down in its entirety.

We agree. Given thecomprehensive and integrated structure of the statute, we do not think it is appropriate to pick and choose among the variousamendments that would make PIPA constitutionally compliant: R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30, at p. 80;Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679, at p. 707. [41] We would therefore declare PIPA to be invalid but suspend the declaration of invalidity for a period of 12 months togive the legislature time to decide how best to make the legislation constitutional.

Rather than sustain the constitutional exemptionordered by the Court of Appeal, we would simply quash the Adjudicator’s order. [42] The Union is entitled to its costs. Appeal substantially dismissed with costs. Solicitors for the appellant the Information and Privacy Commissioner of Alberta: Jensen Shawa Solomon Duguid Hawkes,Calgary. Solicitor for the appellant the Attorney General of Alberta: Attorney General of Alberta, Edmonton. Solicitors for the respondent: Chivers Carpenter, Edmonton.

Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Toronto. Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto. Solicitors for the intervener the Privacy Commissioner of Canada: Osler, Hoskin & Harcourt, Toronto; Office of the Privacy Commissioner of Canada, Ottawa. Solicitors for the intervener the Canadian Civil Liberties Association: Torys, Toronto. Solicitors for the intervener the British Columbia Civil Liberties Association: Moore, Edgar, Lyster, Vancouver.

Solicitor for the intervener the Information and Privacy Commissioner of Ontario: Information and Privacy Commissioner of Ontario, Toronto. Solicitors for the interveners the Coalition of British Columbia Businesses and Merit Canada: Heenan Blaikie, Ottawa. Solicitors for the intervener the Information and Privacy Commissioner of British Columbia: Lovett Westmacott, Vancouver. Solicitors for the intervener the Alberta Federation of Labour: Chivers Carpenter, Edmonton.