The United Food and Commercial Workers union, Local 401, represent the workers at the Palace Casino in Edmonton. During 2006, the union went on strike to protest working conditions. The union formed a picket line. The union posted a sign stating that the union might videotape individuals who crossed the picket line and post those images on a website.
Several individuals who the union recorded crossing the picket line filed complaints with the Alberta Privacy Commissioner. The Commissioner decided that the union did not have the right to make or use the video because it was a violation of the individuals’ right to privacy. The Court of Appeal of Alberta determined that by restricting the union members’ ability to use the video, the privacy legislation at issue infringed the union members’ right to free expression.
The BCCLA is an intervener in the case. We argue that the Supreme Court of Canada must balance the right to privacy against the freedom of expression very carefully in the context of a labour dispute. A labour dispute, at its core, involves free expression and expressive actions. Freedom of expression includes the right to communicate one’s ideas and opinions, and is one of the most fundamental freedoms.
Picketing is the key way a union communicates about a labour dispute. Videotaping a picket line is a way for union members to express their views freely. It informs workers and the public about a strike. The BCCLA will argue that the expressive act of videotaping at a picket line must be protected, and that an absolute ban on unions videotaping at a picket line is unjustified. The BCCLA will also argue that Alberta’s privacy legislation fails to strike an appropriate balance between the protection of privacy and the freedom of expression.
The Supreme Court of Canada released its decision in the case on Friday, November 15, 2013. The Supreme Court of Canada agreed with the submissions of the BCCLA. The Court, per Abella and Cromwell, JJ., determined that PIPA does not achieve a constitutionally acceptable balance between the interests of individuals in controlling the collection, use and disclosure of their personal information and a union’s freedom of expression. The Court found that that PIPA violates 2(b) of the Charter because its broad impact on freedom of expression in the labour context is disproportionate and the infringement is not justified under s.1.
The Court criticized the Act for not including any mechanisms by which a union’s constitutional right to freedom of expression may be balanced with the interests protected by the legislation. The Court recognized the fundamental importance of freedom of expression, particularly picketing, in the context of labour disputes. The Court acknowledged that picketing has strong historical roots, and that picketlines are an invaluable tool in the arsenal of workers in the collective bargaining process.
The Court declared PIPA to be invalid but suspended the declaration of invalidity for a period of 12 months to give the legislature time to decide how best to make the legislation constitutional.
The BCCLA was represented by Lindsay Lyster and Jessica Derynck of Moore Edgar Lyster.