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SCC Protects Union Rights to Strike-Related Activity over Public Privacy Legislation

In a decision that will come as little surprise to many labour practitioners, on both sides on the union-management spectrum, the SCC has ruled that it is unlawful for Alberta’s privacy legislation to restrict a union’s right to photograph people entering a struck workplace in public view and posting the photographs on its website.  The Province has been given 12 months to re-write the law.

Like most provincial privacy legislation, Alberta’s Personal Information Protection Act (“PIPA”) restricts and regulates the collection, use, disclosure and retention of people’s personal information. Unlike privacy legislation in some provinces (i.e. Ontario), Alberta’s PIPA does not limit its application, in the case of private organizations, to activities undertaken for a commercial purpose. There are exemptions for domestic, journalism purposes etc., but no exemptions apply generally to labour-relations related activities.

In 2006, the United Food and Commercial Workers (“UFCW”), which represents employees at the Palace Casino at West Edmonton Mall in Alberta, held a lawful strike which lasted 305 days.  Notably, as the decision recounts, both the UFCW and the employer’s security company video-taped and photographed the picketline near the main entrance to the casino.  The UFCW posted signs in the area of the picketing stating that “images of persons crossing the picketline might be placed on a website called”.

A number of individuals filed complaints with Alberta’s Information & Privacy Commissioner, whose adjudicator ruled that the UFCW violated PIPA.  The UFCW applied for judicial review of that decision, which ultimately made its way up to the Supreme Court of Canada.

The Supreme Court confirmed the adjudicator’s finding that the UFCW’s conduct violated PIPA.  However, the Supreme Court found that to the extent PIPA restricted that conduct it was an unjustified violation of the UFCW’s constitutionally protected rights under the Charter of Rights and Freedoms (section 2(b), freedom of expression). To restrict UFCW’s activity in that way limited its right to freely communicate its message in furtherance of its labour relations ends.

Query: If the complainants had challenged the employer’s surveillance activity, would the same protection have been afforded?

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