Much Ado about Privacy? How the Alberta Government's Inaction on PIPA Threatened the Act

Much Ado about Privacy? How the Alberta Government's Inaction on PIPA Threatened the Act

Over the past year, the status of Alberta’s Personal Information Protection Act (PIPA) was in flux and closely watched by privacy experts and practitioners across Canada. In November 2013, the Supreme Court of Canada decision in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, 2013 SCC 62, rendered PIPA unconstitutional, and declared it invalid. The Court gave Alberta’s government twelve months to bring the provincial privacy legislation in line with the Charter.

The purpose of PIPA is to govern the means by which the private sector may handle personal information. Though much has been written about the Supreme Court invalidating PIPA as unconstitutional, the inaction of the Alberta provincial government following the decision made this juncture in privacy law particularly notable. Leading up to the November 15, 2014 deadline to amend the Act and account for its shortcomings, it was highly likely that Alberta’s private sector would revert to being governed by the Federal-level legislation, the Personal Information Protection and Electronics Documents Act (PIPEDA). Though PIPA and PIPEDA are substantially similar, there are two notable considerations that would have impacted Albertans had PIPA ceased to exist. First, the province would have had no mandatory breach notification laws, and second, the personal information of employees of provincially-regulated organizations in Alberta would have been statutorily unprotected.

PIPA violates s. 2(b) of the Charter

During a lawful strike that persisted for about ten months, members of the United Food and Commercial Workers Union, Local 401, videotaped and photographed individuals who crossed the picket line. In the area surrounding the picket line, the Union had placed signs that informed the public that images of persons crossing the picket line may be recorded and reproduced on the Union’s website, and in leaflets.

Several individuals who crossed the picket line and whose images were captured filed complaints with the Alberta Information and Privacy Commissioner, who in turn appointed an adjudicator to determine whether the Union had contravened PIPA. The complainants expressed concern that their personal information had been collected and disseminated by the Union without their consent in violation of the Act. When the Adjudicator found the Union’s collection, use and disclosure of information was not authorized under PIPA, the Union applied for judicial review of the legislation. On judicial review, PIPA was found to violate the Union’s rights under s. 2(b) of the Charter, and the Union was granted a constitutional exemption by the Court of Appeal for Alberta. The Court of Appeal declared PIPA unconstitutional as an infringement of the Union’s s. 2(b) right to freedom of expression.

When the matter was appealed to the Supreme Court of Canada, it was substantially dismissed by a unanimous Court. The Court held that personal information collected by the Union was done so in the climate of an open political demonstration where it was readily and publicly observable. Those who crossed the picket line had a reasonable expectation that their images could be captured and disseminated by others, such as journalists. The Court further found that the “personal information” collected, used, and disseminated by the Union was “limited to images of individuals crossing a picketline and did not include intimate biographical details”. Insofar as PIPA restricted the Union’s collection and disclosure of personal information for a legitimate labour relations issue, the Court held that the Act breached s. 2(b) of the Charter, and the infringement was not justified under s. 1.

The Government of Alberta’s inaction

Following the Supreme Court of Canada decision rendering PIPA invalid, the Government of Alberta had a 12-month deadline to bring the Act into compliance with the Charter. That quickly approaching deadline has been met with subsequent inaction by the government, though not due to delay on the part of the Privacy Commissioner of Alberta. On December 23, 2013, following the decision of the Supreme Court, the Alberta Commissioner wrote to the Alberta Government with a proposal that would make PIPA constitutionally compliant. The proposed amendments bring the Act into compliance with the Charter, while preserving the balanced and principled basis of the Act. The letter was met with silence.

In mid-September, the Alberta legislature was prorogued until November 17, 2014, two days after amendments to PIPA must be passed.

On September 23, 2014, the Alberta Commissioner wrote an open letter to Premier Prentice about the status of PIPA. At that time, the Premier announced that he would be seeking an extension of the Declaration of Invalidity from the Supreme Court, and a motion requesting this was filed by the Attorney General of Alberta on October 1, 2014. Had the extension not been granted by the Supreme Court, Alberta would have reverted to being governed by the federal private sector privacy act, PIPEDA. In early November, the Supreme Court granted a six-month extension to bring PIPA in line with the Charter.

Bill 3: The Personal Information Protection Amendment Act, 2014

Following the extension, the Government of Alberta rapidly introduced a bill with proposed amendments to PIPA. The Bill prescribed a very narrow set of amendments that had been previously proposed by the province’s Information and Privacy Commissioner in December 2013. Under Bill 3, a trade union (but no other organization) may collect, use, or disclose personal information about an individual without consent, for the purpose of informing or persuading the public about a matter of significant public interest or importance that relates to a labour dispute involving the union, provided that it is both reasonably necessary to collect, use or disclose personal information for that purpose, and reasonable to do so without consent for that purpose, taking into consideration all relevant circumstances, including the nature and sensitivity of the information.

The narrow amendments reflect the directive received by the Government of Alberta from the Supreme Court last year. Looking forward, it will be interesting to keep watch over how freedom of expression in matters of “significant public interest” in labour disputes are balanced against a consent in the use, collection and disclosure of personal information.

Faye Alipour is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode's Intellectual Property Law & Technology Intensive Program.  As part of the course requirements, students were asked to write a blog on a topic of their choice.