Law Times

Law Times • January 20, 2014 FOCUS Page 11 SCC Charter decision Alberta ruling may spark challenges to other provinces' laws BY MICHAEl McKIERnAn For Law Times P rivacy legislation across the country may be subject to constitutional challenges after the Supreme Court of Canada struck down Alberta's Personal Information Protection Act, according to a Toronto lawyer. In a case involving a union photographing people crossing a picket line, the full nine-judge panel of the country's top court ruled unanimously in November that the legislation violated freedom of expression guaranteed by s. 2(b) of the Charter of Rights and Freedoms and that the infringement couldn't be justified under s. 1. "I think this is a massive case because it strikes me as the first chapter of a much longer story," says Daniel Glover, a partner in the Toronto office of McCarthy Tétrault LLP. "Although the ruling relates strictly to the Alberta legislation, I think it's a fair comment to say that legislators in B.C., Quebec, and the federal level ought to be taking a hard look at how they've structured their privacy legislation and what they ought to do to avoid a very similar attack to the one made in Alberta." The saga dates back to 2006 during a legal 305-day strike by employees at the Palace Casino at the West Edmonton Mall. Members of the United Food and Commercial Workers Union Local 401 began photographing and videotaping people who crossed the picket line with a warning that the images might appear on its web site, casinoscabs.com. A number of the people recorded complained to the province's privacy commissioner and, after an investigation, one of its adjudicators concluded the act didn't permit the union's actions. The union was ordered to stop its collection of personal information, but on judicial review, it successfully argued the act infringed its right to freedom of expression. The Alberta Court of Appeal agreed, as did the Supreme Court, which struck down the law with a 12-month suspension in order to give the Alberta legislature time to figure out its next course of action. In a decision penned by Supreme Court justices Rosalie Abella and Thomas Cromwell, the top court emphasized the "quasi-constitutional" status of privacy legislation and noted that "the importance of protection of privacy in a vibrant democracy cannot be overstated." They continued: "The price PIPA extracts, however, is disproportionate to the benefits it promotes." In its decision, the court expressed particular concern about the broadness of the act's restrictions and its lack of any balancing mechanism. "As the adjudicator recognized in her decision, [the act] does not provide any way to accommodate the expressive purposes of unions engaged in lawful strikes. Indeed, the act does not include any mechanisms by which a union's constitutional right to freedom of expression may be balanced with the interests protected by the legislation. As counsel for the commissioner conceded during oral submissions, [the act] contains a general prohibition speech-based rights onto what [the of the union's use of personal informaanti-spam law] proposes to do with tion (absent consent or deemed conthe vast spectrum of activity swept up sent) to further its collective bargaining into it, that law looks a heck of a lot objectives. As a result, [the act] deems more vulnerable today than it did bevirtually all personal information to be fore," he says. protected regardless of context." David Elder, counsel and chief priGlover says the Supreme Court's vacy officer at Stikeman Elliott LLP, reasoning on the act's lack of accomsays he found it "curious" that both the modation could apply equally to each attorney general and the privacy comof the country's privacy statutes and, missioner of Alberta asked the court therefore, potentially lead to more to strike down the whole law in the Charter challenges. event they were unsuccessful in resist"Privacy laws across Canada are preing the Charter challenge. mised on the very same structure as the "It may be in one sense strategic. It's Alberta act," he says. going to get the attention of the legis"They are essentially at the outset a lature more than a one-off request for huge net pulling in all kinds of information that is private along with infor- 'I'd suggest this case will be used again a patchwork amendment that would mation that is not private at all, so the and again to test whether legislatures have allow videotaping in the course of a laquestion becomes what loopholes do truly borne in mind the concept of minimal bour dispute," he says. Paul Broad, a partner with Hicks you create to allow for legitimate uses impairment of rights,' says Daniel Glover. Morley Hamilton Stewart Storie LLP of information? There are exceptions in all these acts, but the court found pretty clearly that in London, Ont., says a very specific amendment adthe exceptions in Alberta were not enough. I'd suggest dressing the narrow facts of the casino case is still a posthis case will be used again and again to test whether sibility in Alberta. "If that's all they do and nobody pushes any further, legislatures have truly borne in mind the concept of the decision may have little impact," he says. minimal impairment of rights." But if the Alberta legislature accepts the Supreme According to Glover, Manitoba's newly passed privacy statute, the Personal Information Protection and Identity Court's invitation to draft a more flexible law that allows Theft Prevention Act, is most vulnerable since it's "for all for a contextual analysis of the collection and use of perintents and purposes a carbon copy of the Alberta leg- sonal information, he says it could "lead to a broader reislation." Legislation in British Columbia and Quebec is thinking of privacy statutes." "It all depends on how the legislature initially realso similar enough to face problems in the event of a sponds and whether anyone else tries to piggyback on to challenge, he says. All other provinces and territories fall under the fed- that, but I wouldn't want to guess which way it will go," eral Personal Information Protection and Electronic says Broad. According to Elder, the Supreme Court's 12-month Documents Act that shares the broad definition of personal information in Alberta's legislation. But Justin Nas- suspension of its declaration of invalidity could make it seri, a colleague of Glover's at McCarthys, says PIPEDA's difficult for Alberta to enact anything more than a minor application to commercial activities only significantly alteration to the act. "It's much more daunting and time-consuming to narrows its scope, something he says reduces the chances enact a whole new piece of legislation than one targeted of a challenge. "My view is that the skies aren't falling. Could there amendment. One year is a fairly ambitious timetable. It be future challenges to the federal statute based on this depends on what else is going on in the legislature and case? Certainly. Would they succeed? Not necessarily," getting support from various parties. I think have their LT he says. "Organizations are going to be a lot more wary work cut out for them," he says. about the reputational risks that come with litigation and media attention. They're going to be more inclined to collect personal information in a way that doesn't upset their customers." However, Glover says the Supreme Court's decision could even affect statutes outside the privacy sphere altogether. He says Canada's anti-spam law, which is about to come into force later this year, adopts a similar approach to the Alberta act in that it bans the sending of all unsolicited commercial electronic messages with certain exemptions outlined in the legislation and accompanying regulations. "If you were to graft what the Supreme Court says here about the balance between privacy-based rights and Looking for legal expertise? Find exactly what you need at www.CanadianLawList.com yu and it's available to yo 24 hours a day. Untitled-4 1 Starting a business, making a will or buying a house? Declaring bankruptcy, dealing with a personal injury, insurance claim or job loss? If you're in the midst of one of life's big events, help is as close as your smartphone, tablet or computer. Simply go to www.CanadianLawList.com to find the right lawyer for your particular legal need. www.CanadianLawList.com is Canada's most comprehensive online directory of lawyers and law firms. And it's easy to use! You can search by city, legal specialty, or name for listings and contact information. Find the legal expertise you need at www.CanadianLawList.com. www.lawtimesnews.com 13-12-19 3:08 PM

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