This website uses cookies to various ends, as detailed in our Privacy Policy. You may accept all these cookies or choose only those categories of cookies that are acceptable to you.

Loading paragraph markers

United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130 (CanLII)

Date:
2012-04-30
File number:
1103-0211-AC
Other citations:
349 DLR (4th) 654 — [2012] 6 WWR 211 — 544 WAC 197 — 522 AR 197 — 57 Alta LR (5th) 249 — 258 CRR (2d) 110 — 33 Admin LR (5th) 321 — [2012] AJ No 427 (QL)
Citation:
United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130 (CanLII), <https://canlii.ca/t/fr4l5>, retrieved on 2024-03-28

In the Court of Appeal of Alberta

 

Citation: United Food and Commercial Workers, Local 401 v Alberta (Attorney General),  2012 ABCA 130

 

                                                                                                                              Date: 20120430

                                                                                                                  Docket: 1103-0211-AC

                                                                                                                        Registry: Edmonton

Between:

 

United Food and Commercial Workers, Local 401

 

                                                                                                                                       Respondent

(Applicant)

 

                                                                        - and -

 

Information and Privacy Commissioner

 

                                                                                                                                       Respondent

(Respondent)

 

                                                                        - and -

 

Attorney General of Alberta

 

                                                                                                                                            Appellant

(Respondent)

 

               _______________________________________________________

 

The Court:

                                       The Honourable Mr. Justice Frans Slatter

                                The Honourable Mr. Justice J.D. Bruce McDonald

                                    The Honourable Madam Justice Donna Read

               _______________________________________________________

 

 

           Reasons for Judgment Reserved of The Honourable Mr. Justice Slatter

Concurred in by The Honourable Mr. Justice McDonald

Concurred in by The Honourable Madam Justice Read

 

 

                                                        Appeal from the Order by

                                          The Honourable Madam Justice J.H. Goss

                                                  Dated the 30th day of June, 2011

                                               Filed on the 2nd day of August, 2011

                                            (2011 ABQB 415, Docket: 0903 05953)


               _______________________________________________________

 

                                            Reasons for Judgment Reserved of

The Honourable Mr. Justice Slatter

               _______________________________________________________

 

[1]               The respondent union videotaped people crossing its picket line, and suggested it might post those recordings on the Internet. The issue on this appeal is whether the union has a constitutionally protected right to collect images of persons crossing the picket line, and therefore whether an order by the respondent Commissioner preventing it from doing so should be set aside.

 

Facts

 

[2]               The union represents the workers at the Palace Casino in Edmonton. During 2006, collective bargaining broke down and the workers went on strike. During the strike, both the union and the employer videotaped the picket line. The evidence disclosed that in Alberta such taping is standard practice during strikes. The union posted signs in the area stating that images of those who the crossed picket line might be placed on a website entitled “www.CasinoScabs.ca”.

 

[3]               The casino is located in a shopping mall, and access to the casino doors is obtained through the mall’s hallways. Several persons who were recorded crossing the picket line filed complaints with the Commissioner under the Personal Information Protection Act, SA 2003, c. P-6.5. The complainants included employees and officers of the employer, as well as members of the public. Notwithstanding the warning sign, the union did not actually post recordings of any of the complainants on the website.

 

[4]               The respondent Commissioner directed an inquiry, and an Adjudicator concluded that the union did not have the right to collect and use the recordings: Re United Food and Commercial Workers Local 401, Order P2008‑008. The union applied for judicial review, arguing that the effect or interpretation of the Act adopted by the Adjudicator violated its constitutional rights under the Charter of Rights. The chambers judge agreed, and struck down certain portions of the Act: United Food and Commercial Workers, Local 401 v Alberta (Information and Privacy Commissioner), 2011 ABQB 415, 509 AR 150. The Attorney General of Alberta then launched this appeal.

 

The Personal Information Protection Act

 

[5]               The Personal Information Protection Act expressly states its overall purposes. The most important provision is s. 3:

 

3.         The purpose of this Act is to govern the collection, use and disclosure of personal information by organizations in a manner that recognizes both the right of an individual to have his or her personal information protected and the need of organizations to collect, use or disclose personal information for purposes that are reasonable.

 

The statute recognizes two competing values: the right to protect information, and the need to use it. The Act does not expressly refer to how it interacts with the right to free expression.

 


[6]               The Act is a statute of general application with a wide reach. The breadth of its reach arises firstly from the very wide definition of “personal information” in the statute:

 

1(1)  In this Act,

 

. . .

 

(k)        “personal information” means information about an identifiable individual;

 

. . .

 

The Act also regulates a wide range of organizations. It does not apply to “public bodies” (which are regulated by the Freedom of Information and Protection of Privacy Act, RSA 2000, c. F-25), nor individuals not acting in a commercial capacity. But other than that, s. 4 states that it does apply to “every organization and in respect of all personal information”, subject to some listed exemptions and exceptions.

 

[7]               One exemption of relevance to this appeal is for “journalistic purposes”:

 

4(3)  This Act does not apply to the following:

 

. . .

 

(c)        the collection, use or disclosure of personal information . . . if the collection, use or disclosure, as the case may be, is for journalistic purposes and for no other purpose;

 

. . .

 

The Act is therefore completely inapplicable to “journalistic” information.

 

[8]               With respect to the organizations and information it does cover, the basic tenor of the Act found in s. 7 is that the “collection, use and disclosure” of all personal information is prohibited unless the organization has the “reasonable consent” of the individual, or the information in question is “exempted” under the Act. There is in addition an overriding limitation in s. 5(5) that: “In meeting its responsibilities under this Act, an organization must act in a reasonable manner”, and the requirement for “reasonableness” is carried forward into other provisions that enable the collection, use or disclosure of personal information.

 

[9]               There are some sections of the Act that dispense with the need for consent, or which recognize various forms of “implied consent”. Section 14 lists a number of instances where for policy reasons consent is not required:

 


14        An organization may collect personal information about an individual without the consent of that individual but only if one or more of the following are applicable:

 

. . .

 

 

(d)        the collection of the information is reasonable for the purposes of an investigation or a legal proceeding;

 

(e)        the information is publicly available as prescribed or otherwise determined by the regulations;

 

. . .

 

Unlike information obtained for journalistic purposes (which is outside the operation of the Act), the type of information listed in s. 14 is subject to the Act, but the need for consent is dispensed with.

 

[10]           Despite the superficial breadth of the exception for “information publicly available”, that provision has no application here. The information that is prescribed as being “publicly available” is in fact very narrow, and excludes a great deal of information within the literal meaning of the phrase: Personal Information Protection Act Regulation, Alta Reg 366/2003, s. 7. Notwithstanding that the persons crossing the picket line did so in a public place, and could have been observed by any member of the public, that information is not “publicly available” within the meaning of the Regulation. Under the Act, “personal” information is not the same thing as “private” information.

 

[11]           In this case the union argued that it was entitled to record the persons crossing the picket line. It argued, firstly, that the recording of the picket line was done for “journalistic purposes”, and therefore its activities were completely outside the operation of the Act under s. 4. Alternatively, it argued that the recording of the picket line was done in anticipation of legal proceedings (for example, before the Labour Relations Board), or for investigations arising out of the strike. If the recording of the picket lines was not otherwise permitted, the union argued that the Act is too sweeping in its reach, and in violation of its Charter rights. As such, portions of the Act had to be struck out, or read down, or some other constitutional exemption had to be made available to the union.

 

The Decision of the Adjudicator

 

[12]           The Adjudicator issued lengthy reasons in support of the conclusion that the union was not entitled to videotape the picket line. She confirmed, at para. 105, her previous decision not to refer the issue to the Labour Relations Board, even though that Board would have jurisdiction to consider the constitutional issues.

 


[13]           The Adjudicator first resolved a preliminary issue. She rejected the argument that all of the union’s activities were exempt from the operation of the Act because they were related to “journalistic purposes”. While the Adjudicator was prepared to accept that the information was in part being used for journalistic purposes, she noted at para. 20 that the union was also collecting the information for other non-exempt purposes:

 

. . . dissuading people from crossing the picket line; acting as a deterrent to violence from non‑picketers; gathering evidence should it become relevant to an investigation or legal proceeding (both of altercations as well as to show long periods of peaceful picketing); creating material for use as a training tool for Union members; providing material to other unions for educational purposes; supporting morale on the picket line with the use of humour; responding to similar activity on the part of the employer, and deterring theft of Union property. At a more basic level, many of these purposes also promoted the underlying purpose of the strike ‑ that of achieving a resolution to the labour dispute favourable to the Union.

 

Recognizing the limitations on her jurisdiction, the Adjudicator reasoned that she could not “read down” the provision exempting journalistic activities by removing the words “and for no other purpose”. As a result, the exception for journalistic purposes did not assist the union.

 

[14]           The union conceded that the video and camera recordings of images of individuals were “personal information” within the meaning of the Act. The Adjudicator confirmed that this concession was consistent with other decisions made by the Commissioner.

 

[15]           The Adjudicator found that images had been taken of a number of people who crossed the picket line. Many of those images were not distributed further. However, the image of a vice president of the casino was placed on a mock “police mug shot” poster, and used in other satirical ways. His image also appeared in the union’s newsletter and strike leaflets. The newsletter was apparently distributed to some members of the public, in addition to union members. The video recording of one incident involving the vice president was also given to the police. The Adjudicator decided to disregard the suggestion that some of the images would be posted on the Internet, because the uncontradicted evidence was that the image of only one individual was posted, and that was done with that individual’s consent.

 


[16]           Since she found that the union was collecting personal information within the meaning of the Act, the Adjudicator went on to consider whether the union required the consent of the subjects of the images. One reason for recording the images was to use them in possible proceedings before the Labour Relations Board, in court proceedings related to picketing, and possibly to provide evidence to the police. The Adjudicator found that the union was allowed to collect, use and disclose personal information under ss. 14(d), 17(d), 20(f) and 20(m) without consent in relation to such  investigations or legal proceedings. To make use of this exception in the Act, the union did not have to prove that an investigation or proceedings was actually underway, so long as one could reasonably be anticipated. To protect the interests of uninvolved third parties, information collected for this purpose had to be kept secure, viewed only as needed, and not retained beyond a reasonable time. Otherwise she found, at para. 98, that this was a reasonable use of the information.

 

[17]           The Adjudicator, however, concluded at para. 64 that some of the collected images had not been used for investigative or legal purposes. For example, the images of the vice president that had been placed on the mock poster, and used in other satirical ways, were not used with respect to any legal proceedings. These uses were not, therefore, exempt from the requirement for consent.

 

[18]           The Adjudicator rejected the argument that the union was entitled to make other uses of the information without consent. Specifically, the union was not allowed to use the images to dissuade people from entering the casino, even though the Labour Relations Code, RSA 2000, c. L-1, s. 84(1) allows picketing for that very purpose. She also concluded, at para. 113, that the union was not allowed to use the information in its posters and newsletters.

 

[19]           Having found that the union was to some extent using personal information for which consent was required, the Adjudicator next considered whether s. 8 of the Act “deemed” that consent to have been given. Section 8 requires that the collector of the information give reasonable notice why it is collecting the information, and give the individual a reasonable opportunity to object. The Adjudicator found that the poster at the entrance warning that images might be posted on the Internet was not sufficient compliance with s. 8.

 

[20]           After dealing with some collateral issues, the Adjudicator ruled that the collection or use of personal information by the union other than for use in an investigation or legal proceeding, or to provide information to the police, was contrary to the Act. She ordered that the union stop collecting information for those unauthorized purposes, and destroy any such information still in its possession.

 

Judicial Review of the Decision

 

[21]           The union applied for judicial review of the decision of the Adjudicator. The union argued that, to the extent the Act prevented the collection of the disputed images, there was an infringement of its Charter rights. The Attorney General opposed the application.

 

[22]           The chambers judge concluded that the recording of the disputed images had expressive content. That was the case even if the union’s ultimate objective was to dissuade people from crossing the picket line, and even if that meant interfering with their privacy. The chambers judge concluded that picketing itself is an expressive action, citing Retail, Wholesale and Department Store Union, Local 558 v Pepsi‑Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 SCR 156, and that freedom of expression in the labour relations context is fundamentally important, citing United Food and Commercial Workers, Local 1518 v KMart Canada Ltd., 1999 CanLII 650 (SCC), [1999] 2 SCR 1083. The chambers judge concluded at para. 100 that recording the images was intimately connected with the picket line activity.

 


[23]           The chambers judge continued her analysis to find that the Act, at least as the Adjudicator interpreted it, purposely and directly limited the freedom of expression of the union. The chambers judge concluded that the narrow exceptions provided for “publicly available” information, and information collected “for journalistic purposes” exacerbated the effect that the Act had on the union’s freedom of expression. She observed that if there were two possible interpretations of the statute, the court should adopt the one that would render the statute constitutional.

 

[24]           The chambers judge examined some of the evidence placed before her, and concluded that the Act could be rendered more constitutionally compliant by adopting an extremely broad definition of “journalism”. In order to do so, the exception for journalistic purposes should not be limited to the traditional media. Rather, it should also be taken to include purposes such as informing the public and picketing union members, dissuading people from crossing the picket line, supporting morale on the picket line, training union members, and providing material to other unions for educational purposes (Reasons at paras. 129-30). However, the use of the images on the mock mug shot poster, and in postings on the Internet, went too far to qualify as journalism (Reasons at para. 132).

 

[25]           In an analogous fashion, deterring violence, deterring theft of union property, and responding to the similar videotaping by the employer should be taken as coming within the exception for investigations and legal proceedings (Reasons at para. 131).

 

[26]           The chambers judge next considered whether the Act’s restriction on the union’s freedom of expression could be demonstrably justified in a free and democratic society, under s. 1 of the Charter. She concluded that the Act’s “general objective” of balancing the need to protect information with the need to use it, was a pressing and substantial goal. Whether the exceptions built into the Act were too narrow would influence whether the means chosen to meet that objective were proportional.

 

[27]           The union argued that limiting “publicly available information” to a few published sources had no rational connection to the stated objectives of the Act. It was not rational to try and protect information in the public sphere, such as what individuals did in public spaces. The images recorded here took place in a public place in plain view, and did not include any intimate details about the complainants. The chambers judge agreed with these arguments, rejecting the Attorney General’s submission that the complainants were entitled to some “practical anonymity”. The chambers judge held at para. 155 that the complainants were not just in a public place, but at “a public demonstration with important political and social implications”. She concluded at para. 156 that there was “no rational connection between protecting personal information and excluding public, political demonstrations, like the picket line, from the definition of ‘publicly available’”.

 

[28]           The chambers judge concluded, however, that there was a rational connection between protecting privacy interests, and limiting the use of that information to journalistic purposes.

 


[29]           The chambers judge continued with the s. 1 analysis by concluding that the impairment on freedom of expression was not minimal. The restrictive definition of “publicly available” information could not be justified. Further, she found at paras. 160-1 that it was unreasonable to restrict the journalistic exemption to organizations that had purely journalistic objectives. There was no rational basis to exclude organizations that had journalistic as well as other objectives.

 

[30]           The chambers judge next considered whether the salutary effects of the Act outweigh its deleterious effects. She began by noting the important role of communications in strikes and picket lines:

 

162      The recordings of the picket‑line, by video and camera, are integral parts of the picket‑line. One of the purposes of picketing is to dissuade people from crossing the picket‑line, by both providing information about the labour dispute and by mocking and attempting to shame people who cross the line to do business with the employer, as replacement workers, customers, or suppliers. The recordings accomplish both. As noted by Professor Taylor workers have engaged in picketing to communicate, educate and persuade. The picket line has been their most valuable tactic to maintain solidarity, to deter strikebreaking, bringing the dispute to the public’s attention, dissuading the public from doing business with the employer, and eliciting support from the broader labour movement and the public. Professor Taylor notes that the internet has expanded the scope and nature of the picket‑line to generate global solidarity and create “cyber‑picket‑lines”. Mockery and shaming have been part of strike and picket‑line expression since at least the 1890’s.

 

She followed the statements by the Supreme Court of Canada in Pepsi, for example at para. 33 that: “Free expression is particularly critical in the labour context.”. She distinguished Aubry v Éditions Vice‑Versa, 1998 CanLII 817 (SCC), [1998] 1 SCR 591 because it arose under the Québec Charter, and because the context was different. The chambers judge found at paras. 172-3 that the deleterious effect of the Adjudicator’s order was severe, because it substantially interfered with the union’s ability to communicate its message.

 

[31]           The chambers judge considered the various constitutional remedies that were available. She quashed the offending portions of the Adjudicator’s order. She declared the words “and for no other purpose” in the journalism exemption in s. 4(3)(c) of the Act to be of no force and effect. She declared that the definition of “publicly available” information found in s. 7 of the Regulation was invalid to the extent that it interfered with union picketing activity, but suspended that declaration of invalidity for 12 months. During the suspension period, she provided a constitutional exemption for union activity. The Attorney General appealed further to this Court.

 

Standard of Review

 


[32]           The approach to determining the standard of review of a tribunal’s decisions is set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. The principles were summarized in Smith v Alliance Pipeline Ltd., 2011 SCC 7 at para. 26, [2011] 1 SCR 160.  Decisions are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of general law that is both of central importance to the legal system as a whole and outside the tribunal’s specialized area of expertise; (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a “true question of jurisdiction or vires”: Dunsmuir at paras. 58-61. On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity”; (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues. These general rules must be applied keeping in mind the basic principles underlying judicial review, and the particular statutory mandate in play.

 

[33]           It is also established that common law standards of review can be displaced by specific legislative direction: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras. 18, 51, [2009] 1 SCR 339. Khosa demonstrates, however, that the courts will not quickly find that a legislative provision is intended to set a standard of review.

 

[34]           The purpose of judicial review is to make sure that administrative tribunals (a) act within their jurisdiction, and (b) act legally. Smith v Alliance Pipeline confirms that the category of “jurisdictional error” is a very narrow one, although it is an issue on which the superior courts review for correctness.

 

[35]           But what is “acting legally”? Or more to the point, who is to decide what is legal and what is not? Cases like Dunsmuir, as refined in later cases like Smith v Alliance Pipeline, confirm that a considerable amount of deference is to be extended to administrative tribunals, even on questions of law. It is not that administrative tribunals have “the right to be wrong”, but rather that they have the right “to say what is right and what is wrong”. While the standard of review can vary depending on the expertise of the tribunal, and the nature of the question, many administrative decisions on questions of law will be reviewed for reasonableness. Further, cases like Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654 have illustrated the wide scope of “reasonableness”. It turns out that “legality” is a very big place.

 

[36]           Under the Dunsmuir analysis, decisions of the Commissioner and his Adjudicators on questions of fact and policy, and on questions of law within the core expertise of the Commission, have called for review on the reasonableness standard: Alberta TeachersAssociation at paras. 34, 39; Leon’s Furniture Ltd. v Alberta (Information and Privacy Commissioner), 2011 ABCA 94 at para. 32, 45 Alta LR (5th) 1, 502 AR 110; Stubicar v Alberta (Office of the Information and Privacy Commissioner), 2008 ABCA 357 at paras. 22‑4, 97 Alta LR (4th) 23, 440 AR 190.

 


[37]           Under the Dunsmuir process, as restated in Smith v Alliance Pipeline, it had sometimes been assumed that constitutional issues, including the interpretation and application of the Charter,  would be reviewed for correctness: Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at para. 18, [2011] 3 SCR 471. That was because such issues were generally felt to be “constitutional”, the first category of reviewable error recognized in Alliance Pipeline. Further, they would generally qualify as “questions of general law of central importance to the legal system”. This would be consistent with the traditional legitimate role of the superior courts in ensuring the legality of the decisions of administrative tribunals. The Dunsmuir emphasis on “deference” directed that the superior courts should not step beyond that traditional role, but did not undermine it.

 

[38]           However, in Doré v Barreau du Québec, 2012 SCC 12 the Supreme Court of Canada held that the standard of review of one specific type of Charter based tribunal decision is reasonableness. That type of Charter issue arises when an administrative tribunal is called upon to balance Charter values in coming to a decision. If a statute or regulation was being challenged under the Charter, the government has the option of attempting to justify it under s. 1 of the Charter. That justification is examined through the test in R. v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103. However, the Oakes test is not used to review the decision of an administrative tribunal that has attempted to recognize Charter values along with other policy and legal imperatives. Where the decision calls for a consideration of the impact of Charter values on the specific facts of the case, Doré at para. 54 calls for a synthesis of the Oakes and Dunsmuir analyses.

 

[39]           Doré at paras. 4, 54 recognizes the fundamental importance of Charter rights. Where a tribunal decision intersects with Charter rights, Doré at para. 6 states the question as: “. . . has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right.” In this analysis, “reasonableness” is measured in context:

 

 

As this Court has noted, most recently in Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, the nature of the reasonableness analysis is always contingent on its context. In the Charter context, the reasonableness analysis is one that centres on proportionality, that is, on ensuring that the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives. If the decision is disproportionately impairing of the guarantee, it is unreasonable. If, on the other hand, it reflects a proper balance of the mandate with Charter protection, it is a reasonable one.

 

Thus, when reviewing a tribunal decision for Charter compliance, absent an extricable legal error in interpreting the Charter, the focus of the analysis will be on “disproportionality leading to unreasonableness”.

 

[40]           The present appeal raises both kinds of Charter issues. From the perspective of the trial judge, some of the provisions of the Personal Information Protection Act were inconsistent with the Charter. An analysis of the constitutionality of the statute calls for an application of the Oakes test. On the other hand, it could be argued that the statute is not unconstitutional per se, but that the way it was brought to bear in this particular decision was inconsistent with Charter values. From that perspective, a Doré analysis is called for. Even if the statute is valid, Doré confirms that the particular decision must be consistent with Charter values: Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 at paras. 116-7, [2011] 3 SCR 134. As long as the tribunal’s decision correctly interprets the Charter text, the decision will not be disturbed unless its assimilation of Charter values is disproportional, and therefore unreasonable.

 


[41]           The application of Doré in Alberta is, however, complicated by the Administrative Procedures and Jurisdiction Act, RSA 2000, c. A-3, s.11. It provides that certain tribunals, including the Commissioner and therefore his Adjudicators, have no jurisdiction to decide constitutional and Charter issues. The operative definition is:

 

10  In this part

 

. . .

 

(d)   “question of constitutional law” means

 

(i)   any challenge, by virtue of the Constitution of Canada or the Alberta Bill of Rights, to the applicability or validity of an enactment of the Parliament of Canada or an enactment of the Legislature of Alberta, or

 

(ii)   a determination of any right under the Constitution of Canada or the Alberta Bill of Rights.

 

These legislative provisions recognize the limited expertise and resources of some tribunals with respect to constitutional issues. They were passed in response to decisions like Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504.

 

[42]           The Administrative Procedures and Jurisdiction Act should not be viewed as a direction to Alberta tribunals that they should ignore Charter values. As Doré states at para. 35 “administrative decisions are always required to consider fundamental values”. But because the statute limits their power to directly resolve Charter issues by limiting their jurisdiction, the statute will necessarily influence the standard of review analysis relating to the tribunal’s decisions. As Doré points out at para. 30, the rule in Dunsmuir is based in part on legislative intent, and the intent of the Administrative Procedures and Jurisdiction Act is clearly that the excluded tribunals have a limited role to play in this area.

 

[43]           The decision in Doré was premised at paras. 29, 35 on a tribunal “both bound by fundamental values and empowered to adjudicate them, and that administrative discretion is exercised in light of institutional guarantees and the values they reflect”. That important presumption does not prevail in Alberta, where the Legislature has recognized that many tribunals do not have the internal expertise to decide constitutional issues. Further, the Alberta statute reflects a policy decision that the citizens of Alberta are ultimately entitled to have their constitutional rights determined by a superior court.

 


[44]           In this case the Adjudicator quite properly did not attempt to engage the Charter issues. She recognized that it was beyond her mandate. It is likely that the parties did not provide a full Charter argument as a result. She not having purported to balance Charter with privacy values, there is in truth no decision to review, either for reasonableness, disproportionality, or correctness. In all the circumstances, applying the four part test in Dunsmuir, the standard of review of the compliance of the decision of the Adjudicator with the Charter should be reviewed for correctness.

 

[45]           To the extent that the decision of the chambers judge (as it reviewed the decision of the Adjudicator) engaged a consideration of the constitutionality of the Personal Information Protection Act, it has to be reviewed for correctness. The approach in Doré only applies to the review of individual administrative decisions for constitutional compliance, where Charter rights have to be balanced with other values. It has no application to a determination of whether a statute is constitutional. Such issues are always reviewed for correctness: Doré at para. 43. To the extent that the chambers judge engaged in an ab initio review of the specific decision for constitutional compliance, that decision is to be further reviewed by this Court for correctness.

 

The “Tainting” Argument

 

[46]           The Commissioner argued on appeal that the chambers judge misconstrued the reasons of the Adjudicator with respect to what might be called “multipurpose” information. The chambers judge, it is argued, effectively found the Act to be unconstitutional based on an interpretation never adopted by the Adjudicator.

 

[47]           The issue arises because s. 4(3) of the Act exempts the collection and use of information when done for certain named purposes, provided that the collection and use is for a named purpose “and for no other purpose”. For example, s. 4(3)(c) exempts from the application of the Act “the collection, use or disclosure, . . . for journalistic purposes and for no other purpose”. How is the Act to be applied when information is collected for multiple purposes, some exempt and some not?

 

[48]           Two interpretations are possible. The first possible interpretation is that if the personal information is not collected solely and exclusively for the exempt purpose, then the information is governed by the Act, even for the exempt purpose. So, for example, if information is collected 90% for journalistic purposes, and 10% for non-exempt and unauthorized purposes, then the information is not exempt at all. The presence of some secondary purpose “taints” the information, and prevents the exemption from applying at all.

 

[49]           The alternative interpretation is that collection for multiple purposes does not “taint” the information. If information is collected partly for an exempt purpose, and partly for other purposes, the exemption is still available for the exempt purposes. The information cannot, however, be used for non-exempt and unauthorized purposes, just because it was collected in part for exempt purposes. So if information is collected 10% for journalistic purposes, and 90% for other purposes, it would still remain exempt for journalistic purposes.

 


[50]           There are some portions of the Adjudicator’s decision (for example, paras. 20, 21, 27) which might be read as adopting the “tainting” argument. Counsel for the Commissioner suggested that this occurred because the union had originally put forward the exception for journalistic purposes as a preliminary issue that would resolve the entire complaint. When other possible exemptions were identified, the issue became better focussed. In any event, as counsel for the Commissioner demonstrated, the Adjudicator recognized that information collected in part for an exempt purpose could be used for that purpose, even if it had also been collected for other purposes. She agreed, for example, that the videotapes of the picket line had partly been made to gather evidence for potential proceedings before the Labour Relations Board, and that the recordings could be validly used for that purpose (paras. 52-3, 68, 71, 73, 111-2). The fact that the recordings had also been made for other purposes did not “taint” the information.

 

[51]           The union understood that the Adjudicator had adopted the “tainting” argument. The chambers judge also understood the Adjudicator to find that information had to be collected “purely” for an exempt purpose (paras. 121, 133). The chambers judge concluded that the limitation by the Act of the collection of information for only “purely journalistic” purposes was constitutionally too narrow. She also suggested (at para. 161) that the Act was not only concerned with the purposes for collecting the information, but with the overall objectives of the organization that was collecting the information:

 

Moreover, personal information is not protected any further by prohibiting an organization with both a journalistic purpose and some other purpose from collecting, using and disclosing it, but not prohibiting an organization with only a journalistic purpose.

 

This caused her to conclude (at para. 172):

 

The deleterious effects on the Union’s freedom of expression are severe. Under PIPA the Union cannot collect, use and disclose the information in its newsletters and leaflets for journalistic purposes, because it has other additional purposes.

 

The Commissioner argues that this is neither the true effect of the Act, nor an accurate reading of the Adjudicator’s decision.

 

[52]           The Commissioner’s arguments have merit. Firstly, the Act is not concerned with the overall objectives of any particular organization. It regulates the “collection, distribution and use” of information. It is the dealings with information that is regulated, regardless of what the overall objectives of the organization may be. An organization might have multiple objectives and purposes, but that has no effect on the legality of its dealings with information. So long as the purpose for which the information was collected or used is exempt, it does not matter if that purpose is only an insignificant part of the organization’s overall mandate. So, even though the union’s purpose is not primarily journalistic, to the extent that it does engage in journalistic activities it is entitled to rely on the exemption in the Act for that purpose.

 


[53]           Further, the Adjudicator (and therefore the Commissioner) did not adopt the “tainting” argument. The Adjudicator did not hold that the words “and for no other purpose” meant that information had to be collected and used exclusively for an exempt purpose. So, for example, if the union had made the picket line recordings 20% for journalistic purposes, 20% for potential use in legal proceedings, 20% for educational purposes, and 40% for use in trying to achieve a favourable end to the strike, the union would not be completely prevented from using the information. The information could still be used for journalistic purposes, because that is an exempt activity. It could also be used in legal proceedings, because that too is a permitted use. The information could not, however, be used for educational purposes, or for leverage in the collective bargaining process, because those activities are not exempt or otherwise authorized.

 

[54]           The chambers judge therefore assessed the constitutionality of the Act based on an inaccurate premise about what the Act prohibits, and what the Adjudicator had ordered. That does not necessarily mean that the Act, or its application to these facts, is entirely constitutional, because its encroachment on the expressive rights of the union must still be shown to be demonstrably justified in a free and democratic society. It does however require a fresh analysis.

 

The Journalism Exemption

 

[55]           The union initially focussed its challenge to the Adjudicator’s order on the exemption in s. 4(3)(c) of the Act for “the collection, use or disclosure, . . . for journalistic purposes and for no other purpose”. That was perhaps a natural starting point. The union’s primary argument was that its constitutional right to free expression permitted it to make and publish the recordings of the picket line. The Act contains no discrete exemption for “Charter protected free expression”. The closest thing available was the exemption for journalistic purposes. The two rights are closely connected in the Charter:

 

2.         Everyone has the following fundamental freedoms:

 

. . .

 

(b)        freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

 

. . .

 

The union’s initial strategy was to argue that all communication of information, including the posting of the picket line recordings on the Internet, was journalistic in nature, and so exempt. This same approach led the chambers judge to conclude that the appropriate remedy in this case was to simply delete the phrase “for no other purpose” from the exemption. If this deletion was combined with a wide reading of the word “journalistic”, the Act would survive constitutional scrutiny.

 


[56]           The argument depended to a considerable extent on attributing a very expansive meaning to “journalistic”. In using that adjective, it is fair to think that the Legislature intended it to have a wide meaning. However, it is unreasonable to think that the Legislature intended it to be so wide as to encompass everything within the phrase “freedom of opinion and expression”. The chambers judge relied on expert evidence and other materials suggesting that “journalism” has a very wide meaning for constitutional purposes. That may be so, but the proper interpretation of the Act depends on what the Legislature thought was included in “journalism”, not what the learned academic authors thought.

 

[57]           In this case it is not helpful to try and force what the union was trying to do into the “journalism” exemption. While the union was, in part, attempting to communicate information to its members and others, that was not the primary or exclusive purpose for recording and using the picket line videos. The union was not primarily engaged in a journalistic activity. This appeal is substantively about labour relations, collective bargaining, and the economic dynamics of a strike. Just because the union might have to communicate with its members and the public about the strike in order to accomplish its labour relations objectives does not turn the whole exercise into journalism. While all journalism may be a form of expression, not all expression is journalism.

 

[58]           The Act contains no general exemption for forms of expression that are constitutionally protected. To the extent that the exemptions in the Act are not sufficient to permit the type of collection and use of information engaged in by the union, its constitutionality should be analyzed directly, not indirectly through an artificial screen of journalistic purposes. Whether the restrictions on the union’s expression are demonstrably justified in a free and democratic society should not be based on the premise that a journalistic purpose was involved. The issue is whether it is justifiable to restrain expression in support of labour relations and collective bargaining activities such as existed here.

 

[59]           In summary, it is not helpful to analyze this situation as “journalism”. Not every piece of information posted on the Internet qualifies. If the union wished to publish information about the activities on the picket line in a newspaper or on television, that would likely qualify as journalism. But that need not be decided here, because that is not what the complaints were about.

 

Freedom of Expression

 

[60]           The Charter analysis should start with the interpretation of the Act adopted by the Adjudicator. She held that the union was entitled to collect the disputed images to the extent that they were used for journalistic purposes, and to the extent that they were used for investigations and legal proceedings. She did not decide that the union had to prove its objectives are “exclusively journalistic” to take advantage of the former exemption.

 

[61]           The Adjudicator’s interpretation, however, did not permit the union to use the disputed images for a number of its intended purposes: placing the images in newsletters and strike leaflets; dissuading people from crossing the picket line; acting as a deterrent to violence from non‑picketers; creating material for use as a training tool for union members; providing material to other unions for educational purposes; supporting morale on the picket line with the use of humour; responding to similar activity on the part of the employer; deterring theft of union property; and generally achieving a resolution to the labour dispute favourable to the union. Insofar as the Act prevents using the information for these purposes, does it inhibit the union’s freedom of expression? If so, is that restriction demonstrably justified in a free and democratic society?


 

[62]           The law is clear that labour picketing incorporates an expressive component. As the Court noted in Pepsi:

 

27        In labour law, picketing is commonly understood as an organized effort of people carrying placards in a public place at or near business premises. The act of picketing involves an element of physical presence, which in turn incorporates an expressive component. Its purposes are usually twofold: first, to convey information about a labour dispute in order to gain support for its cause from other workers, clients of the struck employer, or the general public, and second, to put social and economic pressure on the employer and, often by extension, on its suppliers and clients.

 

The picket line itself is an expressive activity.

 

[63]           It is also appropriate to note that the expressive activity at issue is directly related to the protected Charter right of the workers to associate together to achieve their common goals: Ontario (Attorney General) v Fraser, 2011 SCC 20 at paras. 37-9, [2011] 2 SCR 3.

 

[64]           The order of the Adjudicator did not have any impact on the picketing itself; the order related to what might be described as a secondary use of the picket line, namely the making and distribution of recorded images of the picketing. One purpose of a picket line has always been to inform the workers and members of the public of the strike. Those who are sympathetic with the strike will often refuse to cross the picket line. It is also clear that the presence of the picket line is intended to discourage and even intimidate the non-sympathetic into suspending their relationship with the employer. Recording and distributing images of those crossing the picket line serves both these functions. It spreads news of the picket line to a wider audience. It also tends to increase the pressure on those who might be tempted to cross the picket line. Rather than just being subjected to the disapproval of those who actually observe a member of the public crossing the picket line, the line-crosser engages the risk that a wider audience of friends, neighbours, business associates, and other members of the public may see the violation of the picket line. Recording the picket line therefore also has an expressive purpose.

 

[65]           Where freedom of expression is engaged, that encompasses an ability to collect the information that is to be distributed: R. v National Post, 2010 SCC 16 at para. 33, [2010] 1 SCR 477. Thus, if the union had a right to express its views about the collective bargaining process, the strike, and crossing of the picket line, it also had a right to gather information for that purpose. That would provide some constitutional protection for making the videos of the picket line.

 


[66]           The appellant argues that the union’s use of the images amounted to “threats” or “a self-interested interference with privacy” or as “invading people’s privacy to get what it wants from them”. Strikes are not tea parties: Pepsi at para. 90. There are undoubtedly some unpleasant aspects to collective bargaining, but collective bargaining and the strikes that occasionally result are recognized as legitimate features of the Canadian economy. There is nothing in s. 2 of the Charter to suggest that the protected rights can only be used in non-selfish or benevolent ways, and cannot be used to promote one’s personal interests. It is not only pleasant and benign speech that is protected. Attempting to persuade the public to support the union, and to suspend doing business with the employer, are key tactical and economic components of a strike. So long as there is no promotion of violence or other illegal activity, a reasonable amount of psychological pressure may be brought to bear on all those involved: Pepsi at paras. 101-7. A balancing of rights is needed: Pepsi at para. 92. 

 

[67]           It is clear that there are many aspects of the Adjudicator’s order that had a direct impact on the right of the union to free expression:

 

                  Newsletters and strike leaflets are entirely expressive; preventing the use of the images in them was a serious infringement on free expression;

 

                  Spreading news of the existence of the strike, and attempting to dissuade people from entering the casino are essentially expressive activities;

 

                  The use of the vice president’s image was also expressive. Satire has always been a powerful form of persuasion;

 

                  Education of union members, and providing information to other unions is expressive at its core.

 

Dissuading people from crossing the picket line, enhancing morale of the strikers, deterring violence and threats, and achieving a favourable end to the strike are all legitimate purposes supported by the right to free expression. Persuading people to think or act in a certain way is a direct purpose of free expression.

 

[72]           The union has established a prima facie breach of its s. 2 Charter rights. Are the provisions of the Act demonstrably justified in a free and democratic society? Is the Adjudicator’s decision unreasonable because its effect on the union’s expressive rights is disproportional? To paraphrase Doré at para. 66, the appellant must demonstrate that the Adjudicator’s decision gave due regard to the importance of the expressive rights at issue, both in light of the union’s right to expression and the public’s interest in open discussion.

 

Justification of the Infringement

 

[73]           Determining if the restriction on free expression is justified starts by analyzing whether the objectives of the statute are related to a pressing and substantial goal. If so, the analysis turns to the proportionality of the legislation. If the limiting measures are rationally connected to the objective, one must then determine whether the infringement is as limited as possible. Finally, the analysis examines whether the salutary effects of the Act outweigh its deleterious effects: R. v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103.

 


[74]           The appellant argued that the exemption for journalistic activities, and for information that is publicly available are demonstrably justifiable. That may be so. The issue, however, is whether the Act as a whole is demonstrably justified, having regard to the impact that it has on the expressive rights of the union. The issue is not what the Act allows, but what it prohibits.

 

[75]           Prior to the enactment of modern privacy legislation, there was little common law protection for privacy rights. The advent of new technology called for legislative intervention. New technology not only permitted the collection of vast amounts of personal data, it also enabled a much wider analysis of that data to extract information. Most importantly, new technology like the Internet enables vastly wider dissemination of information. In the interest of protecting reasonable expectations of privacy, expectations that one can control one’s own image and personal information, and in order to limit the misuse (including fraudulent use) of personal information, many legislatures enacted privacy legislation. This legislation can be accepted as addressing a pressing and substantial problem.

 

[76]           The pressing and substantial problem is the potential misuse of personal information. Limiting the ability of organizations to collect, store, and use that information has a rational connection to the objective.

 

[77]           There is, however, a problem relating to proportionality. The constitutional problems with the Act arise because of its breadth. It does not appear to have been drafted in a manner that is adequately sensitive to protected Charter rights. There are a number of aspects to the over-breadth of the Act:

 

                  It covers all personal information of any kind, and provides no functional definition of that term. (The definition of “personal information” as “information about an identifiable individual” is essentially circular.) The Commissioner has not to date narrowed the definition in his interpretation of the Act in order to make it compliant with Charter values.

 

                  The Act contains no general exception for information that is personal, but not at all private. For example, the comparative statutes in some provinces exempt activity that occurs in some public places.

 

                  The definition of “publicly available information” is artificially narrow.

 

                  There is no general exemption for information collected and used for free expression.

 

                  There is no exemption allowing organizations to reasonably use personal information that is reasonably required in the legitimate operation of their businesses.

 


This appeal clearly demonstrates the impact that the Act can have on protected rights. The legitimate right of the union to express itself and communicate about the strike and its economic objectives have been directly impacted by the Adjudicator’s order. The appellant has not demonstrated why this heavy handed approach to privacy is necessary, given the impact it has on expressive rights.

 

[83]           It is also not apparent that the salutary effects of the Act outweigh its deleterious effects. While the protection of personal information is important, it is no more important than collective bargaining and the rights of workers to organize. It is also no more important than the right of the union to communicate its message to the public. On the other hand, the privacy interest being protected here is minimal. The persons who were videotaped were in a public place, crossing an obvious picket line, in the face of warning signs that images were being collected. The privacy expectations were very low. Protecting that low expectation of privacy does not warrant the significant stifling of expression that resulted from the Adjudicator’s order.

 

[84]           The Commissioner argues that the rights created by the Act are “quasi-constitutional” in nature. That verbal rhetoric is not particularly helpful. The statutory provisions in question are not a part of the constitutional framework, nor is there any general protection of privacy or personal information to be found in the constitution. The Act creates a statutory regime, replete with exceptions and exemptions, that do not bear the characteristics of fundamental constitutional protections. While important, the protections in the Act cannot be equated with constitutional values like freedom of expression and freedom of association.

 

[85]           The appellant also argues that the need for consent found in the statute is justifiable. This is based on the argument that members of the public have an expansive right to protect the use of their image, even when the image is taken in a public place. Individuals undoubtedly do have an interest in how their images are used. Members of the public cannot, however, have a reasonable expectation that they can live their lives in total anonymity. People do not have a right to keep secret everything they do in public, such as crossing picket lines. There is no recognized right to withhold consent to the dissemination of information about unpleasant conduct. Holding people accountable for what they do or do not do in public is a component of the right to free expression.

 

[86]           In summary, the appellant is not able to justify the infringements of free expression arising from the Act.

 

[87]           Given that the effect of the Act on the union’s expressive rights cannot be justified in a free and democratic society, it should be no surprise that the decision of the Adjudicator cannot be sustained. As previously noted, the Adjudicator had no jurisdiction to consider constitutional issues, and it did not attempt to balance expressive and privacy issues. As the discussion on the Oakes test confirms, the Adjudicator’s order had a disproportionate effect on the union’s Charter rights, rising to the level of unreasonableness. The decision of the Adjudicator accordingly cannot stand, even under the test in Doré.

 

Remedy

 


[88]           The Adjudicator’s interpretation of the Act, and the order she granted interfered with the union’s Charter rights. The chambers judge attempted to remedy that breach by providing expansive and somewhat artificial interpretations on some of the terms used in the Act, and by declaring other portions of the Act inoperative.

 

[89]           The particular problem that arises in this appeal could be remedied in any one of a number of ways. Striking out or reading down portions of the statute are not attractive options. The courts have neither the institutional nor the legislative ability to rewrite the Act. It is possible that all of the impugned provisions of the Act might have a constitutional application in some cases, so long as protected rights are not engaged. There is no obvious way to prune this statute so as to make it constitutional. Artificially expanding the meaning of “journalism” is not a helpful solution.

 

[90]           The appropriate remedy in this case is, therefore, not to strike down any portion of the statute. A declaration should issue that the application of the Act to the activities of the union was unconstitutional, because it infringed on the union’s Charter rights. The order of the Adjudicator should be quashed. It is within the particular mandate of the Legislature to decide what amendments are required to the Act in order to bring it in line with the Charter.

 

Conclusion

 

[91]           In conclusion, the appeal is allowed only to the extent that the remedy granted by the chambers judge should be varied. In place of the declarations of invalidity, there will be a declaration that the application of the Act to the activities of the union was unconstitutional. The order quashing the offending portions of the Adjudicator’s decision is affirmed.

 

Appeal heard on January 13, 2012

 

Reasons filed at Edmonton, Alberta

this 30th day of April, 2012

 

 

 

                                                                                                                                                           

                                                                                                                                         Slatter J.A.

 

                                                                     I concur:

                                                                                                                                                           

                                                                                 Authorized to sign for:           McDonald J.A.

 

                                                                     I concur:

                                                                                                                                                           

                                                                                                                                               Read J.

 

 


Appearances:

 

R.S. Wiltshire

for the Appellant

 

G.J. Gray, Q.C. and V.A. Cosco

for the Respondent United Food and Commercial Workers, Local 401

 

G.S. Solomon, Q.C.

for the Respondent Information and Privacy Commissioner