SCC affirms freedom of expression trumps privacy in labour disputes

In a landmark decision released this past Friday, the Supreme Court of Canada upheld the Alberta Court of Appeal’s decision in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 2013 SCC 62 (UFCW), in ruling that the province’s Personal Information Protection Act (PIPA) violated the Union’s freedom of expression as protected by s. 2(b) of the Charter of Rights and Freedoms. In the UFCW case, the Union videotaped people publicly crossing its picket line at the Palace Casino in Edmonton, and stated that it would post the video on a public website. Several people, including the Vice President of the Casino, who were recorded crossing the picket line, filed complaints with the Alberta Privacy Commissioner under PIPA.

Through conducting a s.1 analysis of the legislation, the Supreme Court judges found that while PIPA did have a pressing and substantial objective in allowing individuals to exercise control over their personal information, the scope of the Act was too broad and its limitations were not proportional to the benefits it sought to promote. The SCC decision underlined the Court’s longstanding recognition of “the fundamental importance of freedom of expression in the context of labour disputes” (at para. 29). The Court noted that the information collected by the Union could easily have been collected by anyone else, including journalists, since the picketing was done in public view, hence lowering the individual’s reasonable expectation of privacy. The crux of the decision rested on the principle that “like privacy, freedom of expression is not an absolute value and both the nature of the privacy interests implicated and the nature of the expression must be considered in striking an appropriate balance” (at para. 38).

The unanimous SCC judgment has reaffirmed the idea that freedom of expression trumps privacy interests in labour disputes. Yet this decision also has important implications for privacy interests in other contexts, such as commercial, and the kind of bearing this decision will have on privacy legislations such as Canada’s Anti-Spam Legislation (CASL), and the Personal Information Protection and Electronic Documents Act (PIPEDA) will be interesting to see. However, considering that freedom of expression does not preside as a public right in these areas the same way as it does in labour disputes, the legacy of UFCW in other privacy law spheres may be tenuous. But one can only speculate as case law in these areas continues to develop.