United Food and Commercial Workers, Local 401 v. Privacy Commissioner (Alta.) et al., (2013) 451 N.R. 253 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 11, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 451 N.R. 253 (SCC);2013 SCC 62

UFCWU v. Privacy Commr. (2013), 451 N.R. 253 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2013] N.R. TBEd. NO.008

Information and Privacy Commissioner of Alberta (appellant) v. United Food and Commercial Workers, Local 401 (respondent)

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)

(34890; 2013 SCC 62; 2013 CSC 62)

Indexed As: United Food and Commercial Workers, Local 401 v. Privacy Commissioner (Alta.) et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

November 15, 2013.

Summary:

The United Food and Commercial Workers, Local 401 (UFCW) sought judicial review of a decision by an Adjudicator for the office of the Privacy Commissioner under Alberta's Personal Information Protection Act (PIPA). UFCW alleged that the provisions of PIPA that prohibited the Union from recording (either by photo or video) its lawful picket line was an infringement of its s. 2(b) rights under the Charter.

The Alberta Court of Queen's Bench, in a decision reported at 509 A.R. 150, granted UFCW's application for judicial review. The Attorney General of Alberta and the Privacy Commissioner appealed.

The Alberta Court of Appeal, in a decision reported at 522 A.R. 197; 544 W.A.C. 197, agreed with the chambers judge that there was a breach of s. 2(b) that could not be saved under s. 1 of the Charter, and granted the UFCW a constitutional exemption from the application of PIPA. The Attorney General and the Privacy Commissioner appealed.

The Supreme Court of Canada dismissed the appeal. The PIPA violated s. 2(b) because its impact on freedom of expression in the labour context was disproportionate and the infringement was not justified under s. 1 of the Charter. The Supreme Court therefore declared PIPA to be invalid but suspended the declaration of invalidity for 12 months to give the legislature time to decide how best to make the legislation constitutional. Rather than sustain the constitutional exemption ordered by the Court of Appeal, the Supreme Court simply quashed the Adjudicator's order.

Civil Rights - Topic 1850

Freedom of speech or expression - Limitations on - Picketing (incl. recording of) - A Union 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 (PIPA), which restricted the collection, use and disclosure of personal information by a range of organizations - Those individuals were successful - On judicial review, the chambers judge found that PIPA infringed the Union's right to freedom of expression under s. 2(b) of the Charter and that the infringement was not justified under s. 1 - The Court of Appeal agreed and granted the Union a constitutional exemption from the application of PIPA - The Supreme Court of Canada dismissed the appeal - The legislation violated s. 2(b) because its impact on freedom of expression in the labour context was disproportionate and the infringement was not justified under s.1 - The collection, use and disclosure of personal information by the Union in the context of picketing during a lawful strike was inherently expressive - To understand how PIPA limited the Union's expressive activities, the Court reviewed the legislation in some detail - On the s. 1 analysis, the Court concluded that "[w]hile PIPA is rationally connected to a pressing and substantial objective, its broad limitations on freedom of expression are not demonstrably justified because its limitations on expression are disproportionate to the benefits the legislation seeks to promote." - The Court suspended the declaration of invalidity for 12 months to give the legislature time to decide how best to make the legislation constitutional - See paragraphs 10 to 41.

Civil Rights - Topic 1850

Freedom of speech or expression - Limitations on - Picketing (incl. recording of) - A Union recorded and photographed individuals crossing its picketline for use in its labour dispute - Several individuals whose images were captured complained that the Union's activities contravened the Personal Information Protection Act (PIPA), which restricted the collection, use and disclosure of personal information by a range of organizations - The Supreme Court of Canada held that "[t]o the extent that PIPA restricted the Union's collection, use and disclosure of personal information for legitimate labour relations purposes, the Act violates s. 2(b) of the Charter and cannot be justified under s. 1" - PIPA violated s. 2(b) because its impact on freedom of expression in the labour context was disproportionate - "What is of the utmost significance in our view is that PIPA prohibits 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 and bringing debate on the labour conditions with an employer into the public realm. These objectives are at the core of protected expressive activity under s. 2(b). ... [P]icketing represents a particularly crucial form of expression with strong historical roots. ... 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 picketline." - See paragraphs 28 to 38.

Civil Rights - Topic 1858.1

Freedom of speech or expression - Limitations on - Protection of privacy - [See both Civil Rights - Topic 1850 ].

Civil Rights - Topic 1863

Freedom of speech or expression - Denial of - [See both Civil Rights - Topic 1850 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See both Civil Rights - Topic 1850 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity (including portion or section) - [See first Civil Rights - Topic 1850 ].

Labour Law - Topic 8151

Industrial relations - Picketing - Right to picket (incl. right to record) - Freedom of Expression - Charter, s. 2(b) - [See first Civil Rights - Topic 1850 ].

Trade Regulation - Topic 9404

Protection of personal information and electronic documents - Application and interpretation of legislation - [See both Civil Rights - Topic 1850 ].

Trade Regulation - Topic 9443

Protection of personal information and electronic documents - Protection, collection or disclosure of personal information - When appropriate - [See both Civil Rights - Topic 1850 ].

Cases Noticed:

Order P2010-003; Synergen Housing Co-op Ltd., Re, 2010 CanLII 98626 (Alta. O.I.P.C.), refd to. [para. 15].

Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282; 2002 SCC 53, refd to. [para. 19].

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 19].

Heinz (H.J.) Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441; 347 N.R. 1; 2006 SCC 13, refd to. [para. 19].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22, refd to. [para. 29].

United Food and Commercial Workers, Local 1518 v. KMart Canada Ltd. et al., [1999] 2 S.C.R. 1083; 245 N.R. 1; 128 B.C.A.C. 1; 208 W.A.C. 1, refd to. [para. 29].

Fraser et al. v. Ontario (Attorney General), [2011] 2 S.C.R. 3; 415 N.R. 200; 275 O.A.C. 205; 2011 SCC 20, refd to. [para. 30].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 31].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Great Atlantic & Pacific Co. of Canada, Re, [1994] O.L.R.B. Rep. March 303 (L.R.B.), refd to. [para. 35].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 40].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 40].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 2(b) [para. 2].

Personal Information Protection Act, S.A. 2003, c. P-6.5, sect. 3 [para. 14].

Authors and Works Noticed:

Adams, George W., Canadian Labour Law (2nd Ed. 1993) (2013 Looseleaf Update, Release 4), vol. 1, pp. 1-11 to 1-16 [para. 34].

Canada, Report of a Task Force established jointly by Department of Communications/Department of Justice, Privacy and Computers (1972), p. 13 [para. 21].

Craig, John D.R., Invasion of Privacy and Charter Values: The Common-Law Tort Awakens (1997), 42 McGill L.J. 355, pp. 360, 361 [para. 22].

Drapeau, Michel W., and Racicot, Marc-Aurèle, Protection of Privacy in the Canadian Private and Health Sectors 2013 (2012), p. AB-3 [para. 13].

Gratton, Éloཿse, Understanding Personal Information: Managing Privacy Risks (2013), p. 6 ff. [paras. 13, 19].

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007) (2012 Looseleaf Update, Release 1), vol. 2, pp. 38 to 43 [para. 20].

Hunt, Chris D.L., Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for the Development of Canada's Fledgling Privacy Tort (2011), 37 Queen's L.J. 167, p. 217 [para. 22].

International Labour Organization, Report of the Director-General: Freedom of association in practice: Lessons learned (2008), para. 34 [para. 30].

MacNeil, Michael, Unions and the Charter: The Supreme Court of Canada and Democratic Values (2003), 10 C.L.E.L.J. 3, p. 24 [para. 33].

Rayner, Wesley B., Canadian Collective Bargaining Law (2nd Ed. 2007), pp. 2, 457 [para. 34]; 483 [para. 35].

Counsel:

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 of Canada;

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.

Solicitors of Record:

Jensen Shawa Solomon Duguid Hawkes, Calgary, Alberta, for the appellant, the Information and Privacy Commissioner of Alberta;

Attorney General of Alberta, Edmonton, Alberta, for the appellant, the Attorney General of Alberta;

Chivers Carpenter, Edmonton, Alberta, for the respondent;

Attorney General of Canada, Toronto, Ontario, for the intervener, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Osler, Hoskin & Harcourt, Toronto, Ontario; Office of the Privacy Commissioner of Canada, Ottawa, Ontario, for the intervener, the Privacy Commissioner of Canada;

Torys, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

Moore, Edgar, Lyster, Vancouver, British Columbia, for the intervener, the British Columbia Civil Liberties Association;

Information and Privacy Commissioner of Ontario, Toronto, Ontario, for the intervener, the Information and Privacy Commissioner of Ontario;

Heenan Blaikie, Ottawa, Ontario, for the interveners, the Coalition of British Columbia Businesses and Merit Canada;

Lovett  Westmacott,  Vancouver,   British Columbia, for the intervener, the Information and Privacy Commissioner of British Columbia;

Chivers Carpenter, Edmonton, Alberta, for the intervener, the Alberta Federation of Labour.

This appeal was heard on June 11, 2013, before McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The following judgment of the Court was delivered on November 15, 2013, by Abella and Cromwell, JJ.