Alberta Court of Appeal finds applying provincial privacy law to picket-line activities unconstitutional

You may recall in September of last year when the Alberta Court of Queen's Bench declared portions of the province's Personal Information Protection Act to be unconstitutional (See: Alberta court declares portions of provincial privacy law unconstitutional). As expected, the case was appealed and the Court of Appeal has just recently handed down its decision. In United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130, the Court of Appeal upheld the decision of the Court of Queen's Bench.

The Court of Queen's Bench had found that the exception in the Act for journalistic collection was too narrowly drafted, as it required that the collection of personal information be for journalistic purposes and for no other purposes. This was an unreasonable restriction; if the collection were, in part, for journalistic purposes, then the Act should not restrict or regulate it. The Court of Appeal, in contrast, concluded that the purposes were not really journalistic, but were nevertheless constitutionally protected freedom of expression.

[58] The Act contains no general exemption for forms of expression that are constitutionally protected. To the extent that the exemptions in the Act are not sufficient to permit the type of collection and use of information engaged in by the union, its constitutionality should be analyzed directly, not indirectly through an artificial screen of journalistic purposes. Whether the restrictions on the union’s expression are demonstrably justified in a free and democratic society should not be based on the premise that a journalistic purpose was involved. The issue is whether it is justifiable to restrain expression in support of labour relations and collective bargaining activities such as existed here.

[59] In summary, it is not helpful to analyze this situation as “journalism”. Not every piece of information posted on the Internet qualifies. If the union wished to publish information about the activities on the picket line in a newspaper or on television, that would likely qualify as journalism. But that need not be decided here, because that is not what the complaints were about.

The collection of information at a picketline is inherently expressive and is limited by the Act:

[67] It is clear that there are many aspects of the Adjudicator’s order that had a direct impact on the right of the union to free expression:

• Newsletters and strike leaflets are entirely expressive; preventing the use of the images in them was a serious infringement on free expression;
• Spreading news of the existence of the strike, and attempting to dissuade people from entering the casino are essentially expressive activities;
• The use of the vice president’s image was also expressive. Satire has always been a powerful form of persuasion;
• Education of union members, and providing information to other unions is expressive at its core.

Dissuading people from crossing the picket line, enhancing morale of the strikers, deterring violence and threats, and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression. Persuading people to think or act in a certain way is a direct purpose of free expression.

[72] The union has established a prima facie breach of its s. 2 Charter rights. Are the provisions of the Act demonstrably justified in a free and democratic society? Is the Adjudicator’s decision unreasonable because its effect on the union’s expressive rights is disproportional? To paraphrase Doré at para. 66, the appellant must demonstrate that the Adjudicator’s decision gave due regard to the importance of the expressive rights at issue, both in light of the union’s right to expression and the public’s interest in open discussion.

In order to determine if the infringement of the freedom guaranteed in s. 2 of the Charter is justified, the Court carried out the traditional Oakes test and found the legislation wanting in the proportionality branch of the test:

[77] There is, however, a problem relating to proportionality. The constitutional problems with the Act 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 the Act:

• 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.) The Commissioner has not to date narrowed the definition in his interpretation of the Act in order to make it compliant with Charter values.
• The Act contains no general exception for information that is personal, but not at all private. For example, the comparative statutes in some provinces exempt activity that occurs in some public places.
• The definition of “publicly available information” is artificially narrow.
• There is no general exemption for information collected and used for free expression.
• There is no exemption allowing organizations to reasonably use personal information that is reasonably required in the legitimate operation of their businesses.

This appeal clearly demonstrates the impact that the Act can have on protected rights. The legitimate right of the union to express itself and communicate about the strike and its economic objectives have been directly impacted by the Adjudicator’s order. The appellant has not demonstrated why this heavy handed approach to privacy is necessary, given the impact it has on expressive rights.

The result is that the Court declared the application of the Act to the union's constitutionally protected activities was unconstitutional.

This case will almost undoubtedly be appealed to the Supreme Court of Canada. Stay tuned.

It's also notable that the decision contains the following observation, quoted above but worth restating: "There is no exemption allowing organizations to reasonably use personal information that is reasonably required in the legitimate operation of their businesses." This statement was not necessary for the determination of the case under appeal, but potentially has significant consequences for the future.