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Several of the individuals in question complained to the Information and Privacy Commissioner for Alberta.  An adjudicator for the Commissioner found that in failing to obtain the consent of the individuals being videotaped, the union had violated PIPA.

The Alberta Court of Appeal found that the application of PIPA to the union’s activity in the context of a labour dispute violated the right of the union to freedom of expression guaranteed by s. 2(b) of the Charter.  The Court accordingly declared that the application of PIPA to the activities of the union was unconstitutional.

While the facts under appeal relate only to the application of Alberta’s private sector privacy law, the decision on the appeal may also affect the application of substantially similar laws in British Columbia and Québec, as well as the federal law, the Personal Information Protection and Electronic Documents Act.

The outcome of the appeal to the Supreme Court may have important implications well beyond the legality of surveillance activity in connection with picket lines, as it explores the intersection between privacy law and other conflicting rights, potentially calling into question the adequacy of the typically narrow exceptions to the consent requirement in privacy statutes.   In considering the balance between consent requirements and free expression, the appeal may also have important implications for the application of Canada’s Anti-Spam Law (not yet in force), which includes restrictive consent requirements with respect to the sending of commercial electronic messages.

See Information and Privacy Commissioner et al. v. United Food and Commercial Workers, Local 401 et al. (Alta.) (Civil) (By Leave) (34890)

In 2006, the United Food and Commercial Workers, Local 401 (the Union) set up picket lines around the West Edmonton Mall casino, where some of their members worked. The Union video-taped and photographed the picketing in order to publicize images of certain individuals who had crossed the picket lines. Several of these people complained to the Information and Privacy Commissioner (the Commissioner).

One of the Commissioner’s adjudicators found that the Union, having collected personal information, was therefore subject to PIPA, which applies to all organizations and generally prohibits the collection, use and disclosure of personal information without an individual’s consent. The adjudicator held that the Union had violated PIPA by not obtaining consent to use the images of the individuals passing the picket lines.

The Union appealed to the Court of Queen’s Bench. While conceding that it had collected personal information and used it intentionally, the Union argued that it was exercising its right to freedom of expression and that certain exemptions in PIPA were unconstitutional to the extent the provisions were too narrowly-defined and infringed on its Charter right to freedom of expression.

The Union focused on two exemptions to the application of PIPA, specifically where the information collected, used or disclosed is:

1) “publicly available”; or

2) “for journalistic purposes and for no other purpose”.

The Union argued that recordings of its picket lines should have been exempted from PIPA because any passing individuals could not have had a reasonable expectation of privacy given that they were recorded in public. The Union also argued that the fact that it had an interest in the outcome of the strike (and thus an interest in the collection, use and disclosure of the information beyond simple journalism) should not prevent it from being able to rely on the exemption for journalistic purposes.

The judge held that a narrow definition of “publicly available” information would infringe the Union’s Charter rights by precluding the Union not only from collecting images in a public setting, but by preventing the Union “from describing in words what happens in public” if the information contained personal information.

According to the Court, the complainants in this case had no reasonable expectation of privacy. “They were at not just a public place, but a public demonstration with important political and social implications.” As such, the judge found that there was no rational connection between the goal of the protection of individual privacy and the method of restricting the recording of images at a public demonstration. By way of contrast, she noted that privacy legislation in British Columbia contained exemptions for personal images recorded at voluntarily attended public gatherings (e.g. sporting events).

The judge also found the phrase “and for no other purpose” in the journalistic exemption too restrictive and therefore unconstitutional. Any non-media organization, such as the Union, that engaged in journalism would have some other additional purpose and would never fall within the exception. The judge noted that “the requirement that an organization’s only purpose be journalistic is an extreme, almost draconian, limitation on freedom of the press.”

Unable to read the impugned provisions in a manner consistent with Charter values, or to find any Charter justification for these breaches, the judge quashed the adjudicator’s decision to the extent that it relied on the impugned provisions. She further issued a suspended declaration of invalidity with respect to the “publicly available” exemption, with an immediate carve-out for information gathered at trade union picket lines, and declared the phrase “and for no other purpose” in the journalistic exemption to be invalid.

This decision is especially interesting as PIPEDA contains very similar exemptions for the collection, use and disclosure of personal information: (i) when the information is publicly available, or (ii) when the information is used for journalistic purposes and not for any other purpose.

The decision considered the validity of a search warrant obtained based on evidence collected without a warrant from a device that collected detail data respecting the electrical power usage of a homeowner suspected of operating a marijuana “grow op”. This device, known as a digital recording ammeter (DRA) was installed by the electrical utility at the behest of police, who suspected a marijuana growing operation, in order to determine whether electrical usage patterns were consistent with those typical of grow ops. The resulting data was then used to help obtain a warrant to search the premises.

A majority of the court found that the resulting search of the premises was not unreasonable, and therefore did not offend the Charter, overturning a decision of the Alberta Court of Appeal and restoring the original conviction by the trial judge; however, this decision was supported by two different sets of reasons. One block of justices considered that no reasonable expectation of privacy arises with respect to the DRA data, since it revealed nothing about the intimate or core activities of the occupants, and its disclosure to police without a warrant was explicitly permitted by regulation. Another block of justices held that there would have been a reasonable expectation of privacy, but for the regulation authorizing disclosure to police. The dissenting reasons found that there was a reasonable expectation of privacy in the data, which was not diminished by the existence of an “obscure” and difficult to understand regulation, which did not, in any case, allow for the provision of data to police that the utility did not collect in the ordinary course of business.

While the decision was specific to the use of DRAs to record electrical consumption, it may have broader implications for information collected by or available to a range of service providers with access to a wide range of data concerning the private lives of Canadians, including courier and delivery services, fuel suppliers, and telephone, Internet and television service providers. Not only does this divided judgement raise questions about what type of service provider data attracts a reasonable expectation of privacy, it may also cast doubt on the enforceability of contractual or legislative provisions that allow for certain types of disclosure and use of personal information without an individual’s consent, including certain exceptions to the Personal Information Protection and Electronic Documents Act or the proposed provision in Bill C-52, the Investigating and Preventing Criminal Electronic Communications Act, which would require the provision to police of telephone and Internet subscriber data without a warrant.

Specifically, State Farm Mutual Automobile Insurance Company (State Farm) had used video surveillance to inquire about the activities of a third party (Plaintiff) who had brought an action against an insured of the insurer in connection with a motor vehicle accident (State Farm has a duty to defend such an insured pursuant to New Brunswick insurance laws).  The Plaintiff subsequently made a request to State Farm that, pursuant to PIPEDA, all information collected in the course of its investigation be disclosed to him. State Farm indicated that PIPEDA did not apply and denied the request. The insurer had also claimed litigation privilege over the surveillance tapes and associated documentation. The Plaintiff subsequently complained to the Privacy Commissioner of Canada (Commissioner) who decided to proceed with an investigation in connection with the Plaintiff’s complaints.

In this case, State Farm sought an application for judicial review to challenge the decision of the Commissioner to proceed with her investigation.

State Farm argued that such an investigation was not within the jurisdiction of the privacy legislation, which would compel the insurer to provide access to information that would otherwise be covered by solicitor-client privilege or litigation privilege. The Commissioner argued that because the relationship between the insurance company and the insured was for services paid, this was a “commercial activity” as defined in PIPEDA and therefore fell within the scope of her jurisdiction.

The Court found that, pursuant to subsection 4(1)(a) of PIPEDA, “commercial activity” applies to every organization with respect to personal information that “the organization collects, uses or discloses in the course of commercial activities.” However, the Court concluded that if this is read with respect to the logic of the Commissioner, PIPEDA would impede on client privilege or litigation privilege, which was not the intention of Parliament in adopting the act. It concluded that the purpose of PIPEDA is to protect personal information that is collected, used or disclosed in the course of commercial activity in the Canadian market, and that in this particular case the primary activity was not commercial, but rather simply incidental, and should therefore remain exempt from PIPEDA. 

The Court ordered that where the organization being investigated raises solicitor-client or litigation privilege, the Commissioner’s investigative authority is limited. It granted the application for judicial review, declared the Commissioner’s decision invalid and awarded costs to State Farm.

PIPEDA requires that organizations contemplating the use of covert video surveillance ensure that the collection, use or disclosure of such personal information is limited to purposes that a reasonable person would consider appropriate in the circumstances. The guidance document notes that what is considered appropriate in the circumstances involves an analysis of several factors, including whether:

•  there is a demonstrable, evidentiary need for the collection, beyond mere suspicion
•  the personal information collected is clearly related to a legitimate business purpose and objective
• the loss of privacy from the covert video surveillance is proportional to the benefit gained; and
• less privacy-invasive measures were exhausted prior to the implementation of covert video surveillance.