SCC favours expression over privacy without restraint

Here is Paul Broad and my summary of today’s remarkable Supreme Court of Canada decision in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401. (The Court struck down Alberta PIPA as violating section 2(b) of the Charter.)

I’m more open in this forum to think openly about the decision, which strikes me as being most characterized by its unrestraint. The Court could have issued a pronouncement clearly confined to the precise labour-relations context before it, but did not. The general questions it raises about how privacy legislation operates may be quite well-founded, but are not helpful. The decision today is likely to cause litigation that – after much time and energy – leads to necessary clarification and confinement.

There are “narrowing cues” in the decision. For example, the Court suggests that our federal commercial privacy statute (PIPEDA) is better positioned to withstand a challenge because restrains only commercial expression. The Court also signals that some publicly available information will warrant privacy protection.

These cues are mixed in with big questions that are dealt with briefly and in no factual context. The policy makers should not over-react, and should brace themselves for a fight!

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