United Food and Commercial Workers, Local 401 v. Privacy Commissioner (Alta.) et al., (2011) 509 A.R. 150 (QB)

• Judge: Goss, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 15, 2011
• Citations: (2011), 509 A.R. 150 (QB);2011 ABQB 415

UFCWU v. Privacy Commr. (2011), 509 A.R. 150 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. SE.001

In The Matter Of The Personal Information Protection Act, S.A. 2003, c. P-6.5;

And In The Matter Of The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, C.11;

And In The Matter Of Order P2008-008 of the Office of the Information and Privacy Commissioner, issues on March 30, 2009.

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

(0903 05953; 2011 ABQB 415)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Goss, J.

June 30, 2011.

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 Attorney General of Alberta was the only participating respondent in the judicial review.

The Alberta Court of Queen's Bench granted UFCW's application for judicial review. The court found that: (a) the exception in s. 4(3)(c) of PIPA that applied only to an organization that had a journalistic purpose and no other purpose infringed s. 2(b) and was not justified under s. 1 of the Charter; and (b) the provisions in PIPA that prohibited an organization from collecting, using and disclosing personal information collected at a public, political demonstration, like a picket line, infringed s. 2(b) and were not justified under s. 1. The Adjudicator's decision was quashed to the extent that it relied on the impugned provisions. The court granted a declaration that the phrase "and for no other purpose" in s. 4(3)(c) was of no force or effect. As the remedy for the breach occasioned by the narrow definition of "publicly available" in s. 7 of the PIPA Regulation, the court declared s. 7 to be of no force or effect, but suspended the declaration of invalidity for 12 months.

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - A Union sought judicial review of a decision by an adjudicator under Alberta's Personal Information Protection Act (PIPA) - The Union 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) Charter rights - The Alberta Court of Queen's Bench concluded that the activity of recording the picket line by video and still camera photography had expressive content - "Expression of labour interests in a strike or lock-out and related to picket line activity lie deep within the heart of protected expression. The Supreme Court has recognized picketing as expressive action ... and that freedom of expression in the labour relations context is fundamentally important" - See paragraphs 86 to 91.

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - A Union sought judicial review of a decision by an adjudicator under Alberta's Personal Information Protection Act (PIPA) - The Union 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) Charter rights - The Attorney General characterized the Union's activity as threats, invasion of privacy, and smears - Further, the Attorney General argued that PIPA protected an individual's practical anonymity in public places - The Alberta Court of Queen's Bench stated that the argument ignored the Supreme Court of Canada's "very broad interpretation" of what expression was protected under s. 2(b) and that Court's "very narrow drawing of internal exceptions to that protection" - The expressive conduct at issue here was part of the Union's picket line activity - The court concluded that threats of ridicule and public shaming, character smears, and invasion of privacy may be "hateful", but the Union's method of expression (photographs and videos printed on posters or posted on the internet) were not incompatible with free expression or inconsistent with Charter protections - See paragraphs 92 to 101.

Civil Rights - Topic 1850

Freedom of speech or expression - Limitations on - Picketing (incl. recording of) - [See both Civil Rights - Topic 1803 ].

Civil Rights - Topic 1850

Freedom of speech or expression - Limitations on - Picketing (incl. recording of) - A Union sought judicial review of a decision by an adjudicator under Alberta's Personal Information Protection Act (PIPA) - The Union 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) Charter rights - An issue raised on judicial review was whether the information collected, used or disclosed was publicly available as prescribed by s. 7 of the PIPA Regulation (ss. 14(e), 17(e) and 20(j)) - The Alberta Court of Queen's Bench stated that s. 7 of the Regulation defined when "information is publicly available" very narrowly, and that none of the circumstances at issue fell within that exception - Both the purpose and effect of the narrow definition of "publicly available" infringed the Union's rights under s. 2(b) - "Its freedom to express itself through video and photos taken at a public, political event is limited by the exclusion of such events from the definition of 'publicly available'" - See paragraphs 115 to 117.

Civil Rights - Topic 1850

Freedom of speech or expression - Limitations on - Picketing (incl. recording of) - A Union sought judicial review of a decision by an adjudicator under Alberta's Personal Information Protection Act (PIPA) - The Union 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) Charter rights - The Adjudicator, on the basis of her interpretation of PIPA, held that the Union had other purposes beyond journalistic purposes, because it had a stake in the outcome of the strike, and therefore did not come within the exception of s. 4(3)(c) - The Alberta Court of Queen's Bench concluded that journalistic purpose could include persuasion, editorial comment, humour and education - However, while "journalistic purposes" should be interpreted more broadly than that found by the Adjudicator, the end result was the same - The Union had other purposes beyond journalistic purposes, including obtaining a favourable resolution of the strike and using threats and ridicule to persuade people to not cross the picket line - Those purposes fell within the kind of expressive activity PIPA was intended to prohibit - "[T]he purpose of these exceptions in PIPA was to limit expression of personal information by organizations, including unions, where that expression includes personal information, even if one of its purposes, but not the only purpose, was journalistic" - See paragraphs 118 to 135.

Civil Rights - Topic 1858.1

Freedom of speech or expression - Limitations on - Protection of privacy - [See second Civil Rights - Topic 1803 ].

Civil Rights - Topic 1863

Freedom of speech or expression - Denial of - What constitutes - The Alberta Court of Queen's Bench set out the three step analysis to determine whether legislation or government action infringed s. 2(b) of the Charter - "1. Does the activity have expressive content? 2. Does the method or location of the expression remove the protection, or does the expression impose a significant burden on the government? 3. If the expression is protected, does the purpose or effect of the legislation infringe s. 2(b)?" - See paragraph 85.

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - General - Application - Nongovernmental or private interference - A Union sought judicial review of a decision by an adjudicator under Alberta's Personal Information Protection Act (PIPA) - The Union 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) Charter rights - PIPA applied to a variety of nongovernmental organizations, including labour unions - Under the terms of the Act, organizations were permitted to collect, use and disclose personal information under limited circumstances - At issue here were two exceptions to the applicability of PIPA, namely, personal information collected, used or disclosed for journalistic purposes and "for no other purpose" (s. 4(3)(c)) and information that was "publicly available" (ss. 14(e), 17(e) and 20(j)), as defined in s. 7 of the PIPA Regulation - The Alberta Court of Queen's Bench allowed the judicial review application and quashed the Adjudicator's decision the extent that it relied on the impugned provisions.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Alberta Court of Queen's Bench summarized the test under s. 1 of the Charter for justifying the limit of a right or freedom, as set out by the Supreme Court of Canada in Oakes - See paragraph 136.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The provisions of Alberta's Personal Information Protection Act (PIPA) that prohibited the Union from recording (either by photo or video) its lawful picket line were found to infringe its s. 2(b) Charter rights - In the analysis under s. 1 of the Charter, an issue was whether there was a pressing and substantial objective to the exclusion; i.e., in defining "publicly available information" so narrowly that it excluded information collected in public, and in defining "journalistic purpose" so that any organization that had both a journalistic purpose and some other purpose was excluded - The Alberta Court of Queen's Bench concluded that there was a pressing and substantial concern at stake here - "PIPA's goals are to strike a balance between protecting personal information with organizations' needs to use such information" - The exclusions were part of that balancing - See paragraphs 138 to 147.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The provisions of Alberta's Personal Information Protection Act (PIPA) that prohibited the Union from recording (either by photo or video) its lawful picket line were found to infringe its s. 2(b) Charter rights - The Alberta Court of Queen's Bench, in its analysis under s. 1, found that there was no rational connection between protecting personal information and excluding public, political demonstrations, like the picket line, from the definition of "publicly available" - The complainants had no reasonable expectation of privacy - They were at a public demonstration with political and social implications - "There is no rational connection between protecting privacy when the individuals in question are in public view. There is no right to 'practical anonymity'" - Further, PIPA did not prevent individuals or media from taping or photographing the people at the picket line - See paragraphs 148 to 156 - The court concluded, however, that there was a rational connection between protecting privacy interests and prohibiting an organization from collecting, using or disclosing personal information because the organization had additional purposes beyond a journalistic purpose - See paragraph 157.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The provisions of Alberta's Personal Information Protection Act (PIPA) that prohibited the Union from recording (either by photo or video) its lawful picket line were found to infringe its s. 2(b) Charter rights - The Alberta Court of Queen's Bench, in its analysis under s. 1, concluded that the impairment was not minimal - The narrow definition of "publicly available information" protected information in public view, and in which there was no reasonable expectation of privacy - PIPA had no exception for personal information collected at a public event, including a public, political event - Further, the requirement that an organization's only purpose be journalistic "is an extreme, almost draconian, limitation" - See paragraphs 158 to 161.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The provisions of Alberta's Personal Information Protection Act (PIPA) that prohibited the Union from recording (either by photo or video) its lawful picket line were found to infringe its s. 2(b) Charter rights - The Alberta Court of Queen's Bench, in its analysis under s. 1, concluded that the salutary effects of PIPA did not outweigh its deleterious effects - "The salutary effects of protecting personal information is minimal where the individual has chosen to be at a public, political event, and where individuals and the media could take the photographs and video without similar restriction. The deleterious effects on the Union's freedom of expression are severe. Under PIPA the Union cannot collect, use and disclose the information in its newsletters and leaflets for journalistic purposes, because it has other additional purposes. Further, it cannot use the information it collected to mock "scabs" and the employer ... [E]ven if this use is merely an adult version of 'schoolyard teasing', Alberta has not established that such a restriction is justified in a free and democratic society" - See paragraphs 162 to 173.

Civil Rights - Topic 8372

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Scope of - The Alberta Court of Queen's Bench considered the case law that addressed the available options in fashioning a remedy for a Charter violation, including when it was appropriate to suspend a declaration of invalidity - See paragraphs 175 to 179.

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity (including portion or section) - A Union sought judicial review of a decision by an adjudicator under Alberta's Personal Information Protection Act (PIPA) - The Union 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) Charter rights - The Alberta Court of Queen's Bench found that (a) the exception in s. 4(3)(c) of PIPA that applied only to an organization that had a journalistic purpose and no other purpose infringed s. 2(b) of the Charter and was not justified under s. 1 of the Charter; and (b) the provisions in PIPA that prohibited an organization from collecting, using and disclosing personal information collected at a public, political demonstration, like a picket line, infringed s. 2(b) of the Charter and were not justified under s. 1 of the Charter - The court quashed the Adjudicator's decision to the extent that it relied on the impugned provisions of PIPA - Further, the court granted a declaration that the phrase "and for no other purpose" in s. 4(3)(c) was of no force or effect - As the remedy for the breach occasioned by the narrow definition of "publicly available" in s. 7 of the PIPA Regulation, the court declared s. 7 to be of no force or effect, but suspended the declaration of invalidity for 12 months - See paragraphs 181 to 189.

Labour Law - Topic 8151

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

Statutes - Topic 1411

Interpretation - Construction where meaning is not plain - General principles - Avoidance of conflict with Charter - The Alberta Court of Queen's Bench stated that "In keeping with the presumption of constitutionality, "if it is possible to interpret legislation in a way that accords with the Charter and the Constitution, that interpretation is to be preferred" - See paragraph 129.

Trade Regulation - Topic 9404

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

Cases Noticed:

Alberta Teachers's Association, Re; Order P2007-014, [2008] A.I.P.C.D. No. 28 (Adj.), refd to. [para. 15].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 21].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 26].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 26].

R. v. Butler and McCord, [1992] 1 S.C.R. 452; 134 N.R. 81; 78 Man.R.(2d) 1; 16 W.A.C. 1, refd to. [para. 28].

Canada Safeway Ltd. v. Shineton et al. (2007), 444 A.R. 131; 2007 ABQB 773, consd. [para. 29].

Baier et al. v. Alberta, [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [para. 30].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [para. 30].

Delisle v. Canada (Attorney General) et al., [1999] 2 S.C.R. 989; 244 N.R. 33, refd to. [para. 30].

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. 31].

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; 2002 SCC 8, refd to. [para. 31].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 39].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 40].

Aubry v. Éditions Vice-Versa Inc. et al., [1998] 1 S.C.R. 591; 224 N.R. 321, consd. [para. 45].

R. v. Patrick (R.S.), [2009] 1 S.C.R. 579; 387 N.R. 44; 454 A.R. 1; 455 W.A.C. 1; 2009 SCC 17, refd to. [para. 46].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 51].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.)( (2008), 1 Admin. L.R.(5th) 85; 21 Alta. L.R.(5th) 24 (Q.B.), affd. (2010), 474 A.R. 169; 479 W.A.C. 169; 2010 ABCA 26, leave to appeal granted (2010), 409 N.R. 390 (S.C.C.), refd to. [para. 60, footnote 5].

Leon's Furniture Ltd. v. Information and Privacy Commissioner (Alta.) et al. (2011), 502 A.R. 110; 517 W.A.C. 110; 2011 ABCA 94, consd. [para. 78].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, consd. [para. 96].

Canadian Broadcasting Corp. et al. v. Canada (Attorney General) et al. (2011), 411 N.R. 23; 2011 SCC 2, consd. [para. 97].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 110].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 110].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 110].

Quebec (Commission des droits de la personne et des droits de la juenesse) v. Montreal (Ville) et al., [2000] 1 S.C.R. 665; 253 N.R. 107; 2000 SCC 27, refd to. [para. 142].

CTVglobemedia Publishing Inc. v. Canada (Attorney General) et al., [2010] 2 S.C.R. 592; 407 N.R. 202; 2010 SCC 41, refd to. [para. 142].

Globe and Mail v. Canada (Attorney General) - see CTVglobemedia Publishing Inc. v. Canda (Attorney General) et al.

Amalgamated Transit Union Local No. 569 v. Edmonton (City) (2004), 356 A.R. 228; 2004 ABQB 280, refd to. [para. 150].

Milsom v. Corporate Computers Inc. et al., [2003] A.R. Uned. 272; 17 Alta. L.R.(4th) 124; 2003 ABQB 296, refd to. [para. 150].

Poliquin v. Devon Canada Corp. (2009), 454 A.R. 61; 455 W.A.C. 61; 2009 ABCA 216, refd to. [para. 150].

Silber v. British Columbia Television Broadcasting Systems Ltd., [1986] 2 W.W.R. 609; 69 B.C.L.R. 34 (S.C.), refd to. [para. 150].

Druken v. Fewer (R.G.) and Associates Inc. (1998), 171 Nfld. & P.E.I.R. 312; 525 A.P.R. 312; 58 C.R.R.(2d) 106 (Nfld. T.D.), refd to. [para. 150].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 158].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 166].

R. v. National Post et al., [2010] 1 S.C.R. 477; 401 N.R. 104; 262 O.A.C. 1; 2010 SCC 16, refd to. [para. 167].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, consd. [para. 175].

Hutterian Brethren of Wilson Colony et al. v. Alberta (2006), 398 A.R. 5; 2006 ABQB 338, affd. (2007), 417 A.R. 68; 410 W.A.C. 68; 2007 ABCA 160, consd. [para. 178].

Peavine Métis Settlement et al. v. Alberta (Minster of Aboriginal Affairs and Northern Development) et al. (2009), 457 A.R. 297; 457 W.A.C. 297; 2009 ABCA 239, consd. [para. 179].

Cunningham v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al. - see Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al.

Statutes Noticed:

Personal Information Protection Act, S.A. 2003, c. P-6.5, sect. 3, sect. 14(e), sect. 17(e), sect. 20(j) [Appendix].

Personal Information Protection Act Regulations (Alta.), Personal Information Protection Regulation, Reg. 366/2003, sect. 7 [Appendix].

Personal Information Protection Regulation - see Personal Information Protection Act Regulations (Alta.).

Counsel:

Gwen J. Gray and Vanessa Cosco (Chivers Carpenter), for the applicant;

Rod Wiltshire and David Kamal (Alberta Justice Constitutional), for the respondent.

This judicial review application was heard on February 15, 2011, before Goss, J., of the Alberta Court of Queen's Bench, who delivered the following decision, with reasons, at Edmonton, Alberta, on June 30, 2011.