Union’s freedom of expression trumps privacy regulations: Supreme Court

Why the court sided with striking workers
Ice coats tree branches outside of the Supreme Court of Canada Monday December 10, 2012 in Ottawa. Lawyers for eight Canadians challenging the outcomes of the last federal election in six closely contested ridings are in Federal Court this morning arguing that the results should be overturned because of alleged voter-suppression tactics.THE CANADIAN PRESS/Adrian Wyld

The Supreme Court of Canada has declared invalid the regulations intended to protect Albertan’s privacy, giving the province one year to bring the privacy act in line with the constitution.

The court delivered its ruling Friday in a case that involved complaints against striking union workers photographing and recording people who crossed their picket line. Complainants alleged the union was violating their privacy under the Personal Information Protection Act. However, the court ruled the union’s activities were “a crucial form of expression” to inform the public about the strike, gain support and discourage people from crossing the picket line.

“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,” Justices Rosalie Abella and Thomas Cromwell wrote in the unanimous ruling on behalf of nine Supreme Court judges. “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 picket line.”

The case began when employees of Palace Casino at the West Edmonton Mall were striking for 305 days in 2006. Both the casino and the workers’ union, United Food and Commercial Workers Local 401, took photographs and video of people crossing the picket line. The union put up a sign saying these images may be uploaded to a website called

When the casino’s then-vice-president and an employee working near the casino’s entrance complained to the Information and Privacy Commissioner of Alberta, an adjudicator said the union was in contravention of PIPA which requires consent for the collection, use and disclosure of personal information. The union was ordered to stop collecting personal information and destroy any that it had already collected. This decision was overturned by both Alberta’s superior and appeal courts. Canada’s highest court upheld the lower courts’ ruling.

In a written statement, UFCW Local 401 president Douglas O’Halloran said the Supreme Court’s decision is a big win for all Albertans because it forces the province “to finally change a regressive piece of legislation that damages the interests of workers and their rights.”

The Supreme Court emphasized that its ruling was not an endorsement of the union’s activities. Rather, it was a question of balancing privacy interests against freedom of expression, neither of which are absolute values, the court said. In this case, the court declared that PIPA went too far in helping individuals control their personal information at the expense of the union’s charter right to freedom of expression.

The court agreed with Alberta’s attorney general and the information and privacy commissioner that, given PIPA’s “comprehensive and integrated structure,” it would be preferable to strike down the statute in its entirety rather than change only portions of it. The privacy act will remain in effect for one year until the provincial legislature decides how to make it constitutional.