HR | Atlantic - Positive Change at Work

Is Privacy Legislation Unconstitutional?

Jul 12, 2012

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Employers who have had the unenviable experience of wading through the often confusing body of privacy law in place across Canada, will be interested to hear that privacy law had never been constitutionally tested until earlier this year when the Alberta Court of Appeal released its decision in United Food and Commercial Workers, Local 401 v. Alberta (Attorney General), 2012 ABCA 130.  The results of this test were surprising: the Court was unanimous in finding that the Alberta Personal Information Protection Act, SA 2003, c. P-6.5 (“PIPA”) violated the Charter rights of a union engaged in picketing activity.

 PIPA is Alberta’s equivalent to the Federal Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5 (“PIPEDA”).  The Act regulates how the private sector may gather, store and disseminate personal information.  Provinces that do not have legislation regulating how the private sector may handle personal information, such as PEI, are subject to PIPEDA.  The Alberta Court of Appeal’s decision on this matter could therefore have significant repercussions across the country.

In 2006, workers employed by the Palace Casino in the West Edmonton Mall went on strike.  During this strike, both the Union and the Employer videotaped the picket line.  The Union had placed signs throughout the mall informing people that the picket line was being recorded and images of people crossing the picket line would be posted on a website.  No images were ever actually posted online but a number of people filed complaints with the Alberta Privacy Commissioner.  The Inquiry concluded that the Union did not have the right to collect and use the recordings, on the basis that it was collecting personal information.  The Union challenged this finding at the Alberta Court of Queen’s Bench.   The Court found that the Adjudicator’s interpretation of PIPA violated the Union’s freedom of expression rights under section 2 of the Charter.  The Alberta Court of Appeal confirmed the lower Court’s ruling.

According to the Alberta Court of Appeal, the definition of “personal information” under PIPA is too broad.  The Act does not provide an exception for information that is personal but not private, nor does it provide exceptions for information collected and used as an exercise of freedom of expression or for organizations to reasonably use personal information that is reasonably required in the legitimate operation of their businesses.  While the Alberta Court of Appeal decision pertains to an Alberta privacy statute, one can infer that other privacy legislation that also shares these shortcomings would also be unconstitutional, including PIPEDA.

The definitions of “Personal Information” found in both PIPA and PIPEDA are very similar.  The main distinction being that PIPEDA exempts the name, title and business address or telephone number of an employee of an organization from its definition.  However, PIPEDA shares the same flaw that was criticized by the Alberta Court of Appeal, suggesting PIPEDA may also be unconstitutional.

PIPEDA’s constitutionality is also potentially vulnerable in a way that PIPA’s was not; as a federal statute, it may be ultra vires, over-reaching the federal powers and regulating matters that are properly included within property and civil rights in the provinces.  This apparent intrusion into provincial jurisdiction may be sufficient in and of itself to have PIPEDA struck down as being unconstitutional.

MacLeod Robinson MacLean will continue to follow developments in this area and will provide updates as they become available.

by Matt Walters
Reprinted with permission from MacLeod Robinson MacLean

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