Aug 8, 2014

Originally published on February 14, 2014 on the Alexander Holburn Beaudin + Lang LLP Information + Privacy Law Blog:

Author: Alexander Holburn Beaudin + Lang LLP

November, 2013 the Supreme Court of Canada declared Alberta’s Personal Information Protection Act (PIPA) to be unconstitutional, but suspended the effect of the ruling for 12 months to permit legislative changes to be brought forward to remedy the deficiencies. The case of Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 successfully challenged the constitutionality of PIPA in the context of picket line surveillance in a labour dispute. PIPA’s restrictions on the collection use and disclosure of personal information were seen as violating the union’s freedom of expression rights in this labour context. At the request of the Alberta government, the court declared the entire PIPA unconstitutional, rather than attempting to determine which particular legislative provisions might need to be modified.

In December, 2013 Alberta’s Information and Privacy Commissioner publicly commented on her assessment of what needs to be done to amend PIPA in response to this case. In a letter addressed to the Alberta government, she suggests that only very limited changes are appropriate or necessary.

Varying degrees of scope of amendment could possibly be advanced to deal with the constitutional issues arising from PIPA’s structure, which establishes a broad prohibition against any information collection, use or disclosure absent consent, providing only selected and specified statutory exemptions. These potential degrees of scope of amendment included:

a) narrow amendments exempting information collection in a picket line scenario to the extent related to union expressive rights in that narrow context [the particular facts of the United Food case];

b) broader amendments exempting information collection in any context of labour dispute, to the extent related to union expressive rights, even if not in the context of a picket line;

c) even broader amendments exempting information collection in the labour relations sector generally, to the extent related to any party’s expressive rights, even if there is no labour dispute;

d) very broad amendments exempting information collection generally, both within and outside the labour relations context, in any situation where there are legitimate rights of expression which are considered to be protected by the Charter.

In her letter, Alberta’s commissioner advocates that the most appropriate scope of change is the narrowest one, set out in paragraph (a) above. She believes that this would preserve the delicate balance between freedom of expression rights, and leigitmate privacy expectations of individuals, which PIPA is designed to protect. She also suggests that given the imposed timeline for rectification, this specific and narrow amendment can be made without waiting for the context of a more comprehensive and general review of the PIPA legislation.

In January, 2014 the Alberta government announced that it would be bringing forward only selective amendments to PIPA in the fall legislative session, which would focus on and be restricted to unions and picketing. A more comprehensive review of the PIPA legislation would no doubt occur at a later date. This effectively defers any debate on the extent to which PIPA should accomodate other and broader rights of expression beyond the narrow facts of the United Food case.

The Alberta amendments will also be observed with interest by other governments. British Columbia has its own version of PIPA which is very similar in structure to the Alberta legislation. Although not strictly bound by the November, 2014 deadline, British Columbia would be expected to implement changes to its own PIPA law closely tracking the process which occurs in Alberta. The federal private sector privacy law, the Personal Information Protection and Electronic Documents Act (PIPEDA), is not modelled on the PIPA structure, but does contain privacy restrictions which are substantially similar. Some remedial amendments to the PIPEDA law might be expected as well. It is not known how that federal process, if it occurs, would harmonize with current efforts to make more comprehensive changes to PIPEDA, which efforts have become stalled in the Canadian Parliament over the past few years.

Finally, the status of all personal information protection laws enacted in Canada has now been somewhat overshadowed by an initiative in the European Union to re-examine Canadian legislation in this area to assess how closely it meets evolving privacy standards in the European Union. Stay tuned.