SCC File No. 34890
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA)
BETWEEN:
INFORMATION AND PRIVACY COMMISSIONER
APPELLANT – and –
ATTORNEY GENERAL OF ALBERTA
APPELLANT – and –
UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 401
RESPONDENT – and –
ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF BRITISH COLUMBIA, PRIVACY COMMISSIONER OF CANADA, CANADIAN CIVIL LIBERTIES ASSOCIATION, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO COLUMBIA, COALITION OF BRITISH COLUMBIA BUSINESSES and MERIT CANADA, INFORMATION AND PRIVACY COMMISSIONER OF BRITISH COLUMBIA and ALBERTA FEDERATION OF LABOUR INTERVENERS
FACTUM OF THE INTERVENER, COALITION OF BRITISH COLUMBIA BUSINESSES AND MERIT CANADA
HEENAN BLAIKIE LLP HEENAN BLAIKIE LLP 55 Metcalfe Street, Suite 300 55 Metcalfe Street, Suite 300 Ottawa, ON K1P 6L5 Ottawa, ON K1P 6L5
Andrea Zwack Perri Ravon Telephone: 604 891.1161 Telephone: 613 236.1168 Facsimile: 1 866 297.8756 Facsimile: 613 236.9632 Email: [email protected] Email: [email protected]
Simon Ruel Agent for the Intervener Email: [email protected]
Counsel for the Intervener
ORIGINAL TO: The Registrar
COPIES TO: Glenn Solomon, Q.C. / Rob Armstrong Jeffrey W. Beedell Jensen Shawa Solomon Duguid McMillan LLP Hawkes LLP 50 O'Connor Street 800, 304 – 8 Avenue S.W. Suite 300 Calgary, AB T2P 1C2 Ottawa, Ontario K1P 6L2
Telephone: 403-571-1520 Telephone: (613) 232-7171 Ext: 122 Facsimile: 403-571-1528 Facsimile: (613) 231-3191 Email: [email protected] E-mail: [email protected] [email protected]
Counsel for the Appellant, Information Counsel for the Appellant, Information and and Privacy Commissioner Privacy Commissioner
Roderick Wiltshire Brian A. Crane, Q.C. Attorney General of Alberta Gowling Lafleur Henderson LLP 9833 - 109 Street 2600 - 160 Elgin St Bowker Building, 4th Floor Box 466 Station D Edmonton, Alberta T5K 2E8 Ottawa, Ontario K1P 1C3
Telephone: (780) 422-7145 Telephone: (613) 233-1781 Facsimile: (780) 425-0307 Facsimile: (613) 563-9869 E-mail: [email protected] E-mail: [email protected]
Counsel for the Appellant, Attorney Agent for the Appellant, Attorney General of General of Alberta Alberta
Gwen J. Gray Q.C. Raija Pulkkinen Chivers Carpenter Sack Goldblatt Mitchell LLP 101, 10426 – 81 Avenue 500 - 30 Metcalfe Street Edmonton, AB T6E 1X5 Ottawa, Ontario K1P 5L4
Telephone: 780-439-3611 Telephone: (613) 235-5327 Facsimile: 780-439-8543 Facsimile: (613) 235-3041 Email: [email protected] E-mail: [email protected]
Counsel for the Respondent, United Agent for the Respondent, United Food and Food and Commercial Workers, Local Commercial Workers, Local 401 401
Rochelle Fox Robert E. Houston, Q.C. Attorney General of Ontario Burke-Robertson Constitutional Law Branch 441 MacLaren Street 720 Bay Street - 4th Floor Suite 200 Toronto, Ontario M5G 2K1 Ottawa, Ontario K2P 2H3
Telephone: (416) 326-4476 Telephone: (613) 236-9665 Facsimile: (416) 326-4015 Facsimile: (613) 235-4430 E-mail: [email protected] E-mail: [email protected]
Counsel for the Intervener, Attorney Ottawa Agent for the Intervener, Attorney General of Ontario General of Ontario
Sean Gaudet Christopher M. Rupar Attorney General of Canada Attorney General of Canada Public Law Section, PO Box 36 Bank of Canada Building - East Tower Exchange Twr. 234 Wellington Street, Room 1212 3400 - 130 King Street West Ottawa, Ontario K1A 0H8 Toronto, Ontario M5X 1K6 Telephone: (613) 941-2351 Telephone: (416) 973-0392 Facsimile: (613) 954-1920 Facsimile: (416) 952-4518 E-mail: [email protected] E-mail: [email protected] Agent for the Intervener, Attorney General Counsel for the Intervener, Attorney of Canada General of Canada
Mahmud Jamal Regan Morris Osler, Hoskin & Harcourt LLP Kirk Shannon Box 50, 1 First Canadian Place Privacy Commissioner of Canada Toronto, Ontario M5X 1B8 112 Kent St, Suite 300 Ottawa, Ontario
Telephone: (416) 862-6764 Telephone: 613-996-0086 Facsimile: (416) 862-6666 Facsimile: 613-947-4192 E-mail: [email protected] Email: [email protected]
Counsel for the Intervener, Privacy Counsel for the Intervener, Privacy Commissioner of Canada Commissioner of Canada
Patricia D.S. Jackson Guy Régimbald Sarah Whitmore Gowling Lafleur Henderson LLP Torys LLP 160 Elgin Street Suite 3000, 79 Wellington Street West 26th Floor P.O. Box 270, TD Centre Ottawa, Ontario K1P 1C3 Toronto, Ontario M5K 1N2 Telephone: (613) 786-0197 Telephone: (416) 865-7323 Facsimile: (613) 563-9869 Facsimile: (416) 865-7380 E-mail: [email protected] E-mail: [email protected] Ottawa Agent for the Intervener, Canadian Counsel for the Intervener, Canadian Civil Liberties Association Civil Liberties Association
Lindsay M. Lyster Raija Pulkkinen Moore, Edgar, Lyster Sack Goldblatt Mitchell LLP 195 Alexander Street, 3 rd Floor 500 - 30 Metcalfe Street Vancouver, British Columbia Ottawa, Ontario K1P 5L4
Telephone: (604) 689-4457 Telephone: (613) 235-5327 Facsimile: (604) 689-4467 Facsimile: (613) 235-3041 E-mail: [email protected] E-mail: [email protected]
Counsel for the Intervener, British Ottawa Agent for the Intervener, British Columbia Civil Liberties Association Columbia Civil Liberties Association
William S. Challis Nadia Effendi Information and Privacy Borden Ladner Gervais LLP Commissioner/Ontario World Exchange Plaza 2 Bloor Street East, Suite 1400 100 Queen Street, suite 1100 Toronto, Ontario M4W 1A8 Ottawa, Ontario K1P 1J9
Telephone: (416) 326-3921 Telephone: (613) 237-5160 Facsimile: (416) 325-9186 Facsimile: (613) 230-8842 E-mail: [email protected] Ottawa Agent for the Intervener, Counsel for the Intervener, Information Information and Privacy Commissioner of and Privacy Commissioner of Ontario Ontario
Nitya Iyer Mark C. Power Lovett Westmacott Heenan Blaikie LLP 200 – 736 Granville St. 55 Metcalfe Street, Suite 300 Vancouver, BC V6Z 1G3 Ottawa, ON K1P 6L5
Telephone: 604-684-9221 Telephone: 613-236-7908 Facsimile: 250-480-7455 Facsimile: 613-236-9632 Email [email protected] Email: [email protected]
Counsel for the Intervener, Information Agent for the Intervener, and Privacy Commissioner of British Information and Privacy Columbia Commissioner of British Columbia
David Williams Raija Pulkkinen Kristan McLeod Sack Goldblatt Mitchell LLP Chivers Carpenter 500 - 30 Metcalfe Street 101, 10426 - 81 Avenue Ottawa, Ontario K1P 5L4 Edmonton, Alberta T6E 1X5
Telephone: (780) 439-3611 Telephone: (613) 235-5327 Facsimile: (780) 439-8543 Facsimile: (613) 235-3041 E-mail: [email protected] E-mail: [email protected]
Counsel for the Intervener, Alberta Ottawa Agent for the Intervener, Alberta Federation of Labour Federation of Labour
TABLE OF CONTENTS
PART I FACTS AND OVERVIEW OF POSITION 1
PART II POSITION ON ISSUES IN THIS APPEAL 2
PART III ARGUMENT 2
PART IV COSTS 9
PART V REQUEST TO PRESENT ORAL ARGUMENT 10
PART VI TABLE OF AUTHORITIES 11
PART VII LIST OF STATUTES 12
1
PART I OVERVIEW OF POSITION
1. The Coalition of BC Businesses and Merit Canada (“Coalition and Merit”) thank the Court for the opportunity to participate in this important case which considers the balance to be struck between the interests of trade unions in collecting and publicizing information about persons during a labour dispute and the privacy and constitutional interests of the employees and members of the public whose personal information is being collected and disseminated without their consent.
2. The Coalition and Merit respectfully submit that this case should be considered within its own specific factual context – that of a trade union capturing and disclosing (or threatening to disclose) the images and identities of employees, customers and members of the public crossing a picket line during a labour dispute without the consent of the affected individuals. The Coalition and Merit confine their submissions with respect to the constitutional validity of the relevant provisions of the Personal Information Protection Act (PIPA ) to this particular context and application.
3. The Coalition and Merit submit that the provisions of PIPA which were held by the Alberta Privacy Commissioner to restrict the Union from collecting, using and disclosing the personal information of employees and members of the public who crossed or considered crossing the picket line do not infringe s. 2(b) of the Canadian Charter of Rights and Freedoms (“ Charter ”). That is because s. 2(b) does not protect expressive activity which is carried out in a manner which amounts to threatening or intimidation or which results in or threatens actual harm to another person. In the alternative, if any infringement of s. 2(b) is found as a result of the application of the provisions of PIPA (or other similar privacy legislation) in this situation, it is justified under s.1 of the Charter because of the need to balance the expressive interests of the union and its members with the constitutional rights and privacy interests of the affected employees and members of the public.
2
PART II POSITION ON ISSUES IN THIS APPEAL
Do the Personal Information Protection Act, S.A. 2003, c. P-6.5 and the Personal Information Protection Act Regulations, Alta. Reg. 366/2003 violate s. 2(b) of the Canadian Charter of Rights and Freedoms insofar as they restrict a union’s ability to collect, use or disclose personal information during the course of a lawful strike?
4. The Coalition and Merit submit that the answer to this question is no. A union’s collection and disclosure without consent of the personal information of employees and customers who choose to cross a picket line does not fall within the scope of s. 2(b) of the Charter .
If so, is the infringement a reasonable limit prescribed by law, which can be demonstrably justified in a free and democratic society under s.1 of the Canadian Charter of Rights and Freedoms?
5. The Coalition and Merit submit that the answer to this question is yes. The positive influence of the legislation on the protection of other Charter rights and interests, and the negative effect of the Union’s activity on the rights and interests of other members of the community, must inform the Court’s analysis under s. 1 of the Charter . The provisions of PIPA , which require consent of affected individuals to the collection, use or disclosure of their personal information other than in certain excepted situations, and which require that collection, use and disclosure of personal information be limited to that which is reasonably necessary to achieve an organization’s legitimate purposes, strike the appropriate balance of interests in the situation presented by this case.
PART III ARGUMENT
A. A union’s collection and disclosure of the personal information of employees and customers without their consent does not fall within the scope of s. 2(b) of the Charter .
6. The Union argues, and the Court of Appeal accepted, that the provisions of PIPA restricting the Union’s collection, use and disclosure of the images and identities of persons crossing the picket line infringed the Union’s and its members’ freedom of expression under s. 2(b) of the Charter . The Coalition and Merit respectfully submit that this conclusion was in error. 3
7. Expressive activity may be excluded from s. 2(b) protection because of the manner in which it is undertaken. 1 Violent expression is not protected by s. 2(b) because the method by which the message is conveyed – the form of the expression - is not consonant with Charter protection. 2
8. Not only violent expression but “threats of violence” fall outside the scope of the s. 2(b) guarantee. 3
9. As McIntyre J. observed in Dolphin Delivery in the course of discussing whether picketing fell within the scope of s. 2(b):
Action on the part of the picketers will, of course, always accompany the expression, but not every action on the part of the picketers will be such as to alter the nature of the whole transaction and remove it from Charter protection for freedom of expression. That freedom, of course, would not extend to protect threats of violence or acts of violence.4
10. While the Court in Irwin Toy cited physical violence and destruction of property as examples of forms of expression that do not receive Charter protection, it specifically declined to “delineate precisely when and on what basis a form of expression chosen to convey a meaning falls outside the sphere of the guarantee”. 5
11. Moreover, it is important to stress that not all information gathering methods are constitutionally protected. In R v. National Post , this Court held that to clothe journalistic techniques with a form of “constitutional immunity” would “blow a giant hole in law enforcement and other constitutionally recognized values such as privacy”. 6
12. Any expressive activity of the Union in the instant case is carried out by way of unauthorized collection, use and disclosure of employees’ and customers’ personal information – specifically their images and identities, and the fact that they have chosen to cross a picket line to
1 Canadian Broadcasting Corp. v. Canada (Attorney General) , 2011 SCC 2, [2011] 1 SCR 19 at para 35; Montréal (City) v. 2952-1366 Québec Inc ., 2005 SCC 62, [2005] 3 SCR 141 at para 60. 2 Montréal (City) v. 2952-1366 Québec Inc ., 2005 SCC 62, [2005] 3 SCR 141 at para 60; Irwin Toy 3 Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component , 2009 SCC 31, [2009] 2 SCR 295 at para. 28. 4 RWDSU v. Dolphin Delivery Ltd. , [1986] 2 S.C.R. 573 at para 20. 5 Irwin Toy ltd. v. Quebec (Attorney general) , [1989] 1 SCR 927. 6 2010 1 SCR 477 at para 40. 4
attend work or to carry out business -- or the threat of such unauthorized collection and disclosure. The Coalition and Merit submits that the method by which the Union is conveying or seeking to convey a meaning, i.e., the form of the Union’s expression, is not consonant with Charter protection.
13. Taking and disclosing an individual’s personal information without that individual’s consent or threatening to do so, for the purposes of humiliating the person, subjecting them to ridicule, deterring them from exercising their own constitutionally-protected rights, or exposing them to potential physical harm, amounts to an act or a threat of violence or harm. Further, it is important to note that a tort of invasion of privacy has been created by legislation in a number of provinces, and “invasion of seclusion” has been recently recognized as a common law tort by the Ontario Court of Appeal. 7 This constitutes a recognition by the courts and legislatures that invasion of privacy is, at least in some circumstances, harmful in and of itself.
14. It does not help the Union that it posted a notice advising persons that if they crossed the picket line, they were “consenting” to the collection and publication of their images on www.Casinoscabs.ca (or in any other forum). First, to tell an individual that she can only attend work, and thus pursue her livelihood, upon pain of publication of her image on a derogatory website, hardly amounts to seeking valid consent for that publication. Second, it is clear that the intent of this notice was not truly to seek valid consent, but rather to threaten employees and customers who chose to cross the picket line with retaliatory action, including actions which could reasonably expose these persons to ridicule or other harm, in an effort to deter them from crossing the picket line. This is not rational persuasion based on the communication of positions or ideas.
15. Nor does it or should it help the Union’s claim that the Union was engaging in this conduct for the purposes of trying to advance its own interests and that of its members (or some of them) in a labour dispute. Without derogating from the validity of collective bargaining, a labour dispute is fundamentally an economic dispute between an employer and a union as the representative of some or all of its employees. Unions (and union members) do not have a special or better claim to freedom of expression than do any other societal actors, such as individuals, organizations and employers.
7 See, for example, Privacy Act , R.S.B.C., 1996, c. 373; and the Ontario Court of Appeal decision in Jones v. Tsige , 2012 ONCA 32, and cases and legislation cited therein. 5
16. The idea that the psychological harm caused by the invasion of one’s privacy in circumstances such as these is not consonant with Charter protection finds support in the case law dealing with security of the person under s. 7 of the Charter . In R v. Morgentaler , the Court held that that ‘security of the person’ under s. 7 covered both the physical and psychological integrity of the individual. 8 The Court referred to Lamer J’s recognition in Mills v. The Queen that the right to security of the person encompasses the right to be protected against psychological trauma. 9 In his discussion of s.11 d) of the Charter, Lamer J. had held that psychological trauma could take the form of "stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors".10 In R v. O’Connor , LaForest and L’Heureux- Dubé, for themselves and Gonthier J., emphasized that even threatening psychological harm can result in deprivation of security of the person. 11
17. The psychological harm caused by the Union’s activity is not less significant because it occurs in a public space. Privacy interests do not end when an individual steps outside his or her home, and clearly continue in and around the workplace. 12 Indeed, this Court has found numerous public settings in which individuals have a reasonable expectation of privacy, one that attracts constitutional protection. 13
18. Here, many employees, customers and members of the public have a strong interest in anonymity (or at least a reasonable expectation that their activities will not be recorded and publicized), when crossing a picket line in the context of a labour dispute, particularly because of the strong reaction that their choice (which is itself an exercise of their freedom of expression and freedom of association) may engender among those who support the picket line. The unauthorized collection and disclosure of their images by the trade union in these circumstances constitutes a serious intrusion upon their privacy.
8 R. v. Morgentaler , [1988] 1 SCR 30 at paras 18, 245. 9 R. v. Morgentaler , [1988] 1 SCR 30 at para 19. Note that Lamer J. was dissenting in Mills v. The Queen , [1986] 1 S.C.R. 863. 10 Mills v. The Queen , [1986] 1 S.C.R. 863 at para 145. 11 R. v. O'Connor , [1995] 4 SCR 411 at para. 132. Note that LaForest and L’Heureux-Dubé JJ. did not represent the majority on the issue of production of records in the possession of third parties, in relation to which the idea of psychological harm and security of the person was discussed. 12 R. v. Cole , 2012 SCC 53. 13 See R. v. Wise , [1992] 1 S.C.R. 527 (automobile travel), R. v. A.M. , [2008] 1 S.C.R. 569 (school environment), Canadian Broadcasting Corp. v. Canada (Attorney General ), [2011] 1 S.C.R. 19 (litigants appearing before the courts). 6
B. Any infringement of the union’s freedom of expression in this case is justified under s. 1 of the Charter
19. Important interests and Charter rights are at play in the instant case beyond the Union’s freedom of expression and must inform the Court’s analysis under s. 1 of the Charter .
20. This Court has held that consideration of what constitutes a free and democratic society under s.1 requires giving “full recognition to other provisions of the Charter ”. 14 Similarly, this Court has described an analysis under s. 1 as mandating a broad inquiry into Charter values. 15
21. Considering a violation of s. 15 in Lavoie v. Canada , this Court explained that a s.1 justification “may be established by the practical, moral, economic, or social underpinnings of the legislation in question, or by the need to protect other rights and values embodied in the Charter ”. 16
Privacy, personal autonomy and s.7 of the Charter
22. In applying s.1 in the instant case, this Court must consider the values of privacy and personal autonomy, which the legislation seeks to promote and foster. Such values either fall under the scope of s.7 of the Charter or are intimately tied to s.7 interests.
23. The importance of privacy interests to an individual’s freedom has been underscored by this Court on numerous occasions. 17 In R v. Morgentaler , J. Wilson noted that the liberty interest in s. 7 of the Charter was rooted in the concepts of human dignity, personal autonomy, and privacy and choice in making important personal decisions. A purposive interpretation of the Charter required that the right to liberty contained in s. 7 be read to "guarantee[] to every individual a degree of personal autonomy over important decisions intimately affecting their private lives". 18
14 Canada (Human rights commission) v. Taylor , [1990] 3 SCR 892 at pp. 916-917. 15 M. v. H. [1999] 2 S.C.R. 3 at para. 107. 16 [2002] 1 S.C.R. 769 at para. 48. 17 See R v Beare , [1988] 2 SCR 387 at para 58; B. (R.) v Children's Aid Society of Metropolitan Toronto , [1995] 1 S.C.R. 315 at p 369; R. v. O’Connor [1995] 4 SCR 411 at para 113 per L’Heureux-Dubé and La Forest JJ, dissenting on the issue of production of records in the possession of third parties, in relation to which the right to privacy was discussed. 18 [1988] 1 S.C.R. 30 at para 240. 7
24. The decision of employees, customers and members of the public to cross a picket line in the context of a labour dispute constitutes an important personal choice and an expression of personal autonomy. Without attracting a certain measure of privacy, such a decision cannot be freely made.
25. A useful comparison can be drawn with an individual’s decision to attend an abortion clinic, drug addiction treatment center or other similar institution. If she is liable to have her picture taken upon entering, and the picture and or her identity distributed online or in print, she is likely to feel extremely reluctant to attend the clinic or center. Her ability to exercise her freedom of choice and to secure her health and well-being is thereby significantly undermined.
26. Guaranteeing a measure of privacy in making important personal decisions, such as the decision to cross a picket line, is entirely in keeping with Charter values and with the conception of freedom this Court has consistently put forth. In the seminal decision R. v. Big M Drug Mart Ltd. , Dickson J. said:
Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain or sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others.19
27. PIPA provides privacy guarantees that are essential to the exercise of Charter rights and freedoms. The benefits of allowing individuals to freely make fundamental personal decisions outweigh any limit to the Union’s expressive activity.
28. In Canadian Broadcasting Corp v. Canada , this Court held that rules which limit journalistic activity in the public areas of courthouses, while infringing freedom of expression, were nevertheless justified under s. 1 of the Charter , partly because they “help minimize significantly the violation of privacy.”20
19 [1985] 1 S.C.R. 295 at para. 95. 20 2011 SCC 2 at para 90. 8
Freedom from compelled association under s. 2(d) of the Charter
29. In Lavigne v. Ontario Public Service Employees Union , this Court held that an individual’s freedom to refrain from association is a “necessary counterpart of meaningful association in keeping with democratic ideals”. 21
30. The freedom of choice of individual employees with respect to participation in collective bargaining, including labour disputes, is an element of the right not to associate under s. 2(d) of the Charter .
31. By providing a measure of protection to employees’ personal information against unauthorized use by unions seeking to utilize this information in the context of a labour dispute, PIPA fosters a safe environment in which individual employees can meaningfully exercise their right not to associate, including by declining to participate in a strike or by crossing a picket line.
32. PIPA ’s positive influence in enabling employees to exercise their right not to associate must be considered in the application of the s. 1 analysis in the instant case.
The freedom of expression of other members of the community
33. The Union’s freedom of expression is not the only manifestation of freedom of expression in the instant case. The decision of an individual employee, customer or member of the public to cross a picket line in the context of a labour dispute is itself an exercise of freedom of expression under s. 2(b) of the Charter .
34. Moreover, contrary to the Union’s expression at issue here, which constitutes an invasion of privacy and potential source of harm, the form of expression of individual employees and customers – the peaceful crossing of a picket line – is entirely consonant with Charter values.
35. PIPA ’s positive influence in enabling individual employees, customers and members of the public to exercise their freedom of expression is another factor that must be considered in the application of the s. 1 analysis in the instant case.
21 [1991] 2 S.C.R. 211 at para 226; See also, R. v. Advance Cutting & Coring Ltd. , [2001] 3 S.C.R. 209. 9
Limitations placed on trade unions’ freedom of expression should be commensurate with those placed on employers and others.
36. Finally, as noted above, unions do not have an enhanced right to freedom of expression over and above that enjoyed by other societal actors, including employers. There are many limitations on the exercise of freedom of expression of employers which are accepted as necessary to protect the legitimate and sometimes competing rights and interests of others, including trade unions and employees.
37. For example, it is well-established that employers and business organizations are not entitled to collect, use and disclose the images and activities of their employees, customers or members of the public other than as reasonably necessary for legitimate business or employment purposes. The exact determination of what constitutes personal information, what is a valid purpose, and what scope of collection, use or disclosure is “reasonably necessary” to achieve that purpose, may well be the subject of debate in any given case.
38. However, certainly employers would not be entitled to record and publicly disseminate personal images of or other personal information about their employees and members of the public for the purposes of deterring employees from participating in a legal strike or other collective bargaining activity, or for the purpose of deterring members of the public from doing business with a competitor. Such conduct would not only violate privacy legislation such as PIPA , but would likely also be considered coercive or intimidating and therefore would be an unfair labour practice under labour relations laws or possibly tortious. The fact that an employer wishes to express dissatisfaction with the conduct of its employees or members of the public or wishes to communicate about these issues in order to advance its position in a labour dispute would not justify an exception, on freedom of expression grounds, to the normal application of privacy restrictions, labour laws or tort law. Nor should it do so in the case of a trade union.
PART IV COSTS
39. The Coalition and Merit requests that it bear its own costs and that no costs award be made against it.
11
PART VI TABLE OF AUTHORITIES
Tab Caselaw Para cited
1. B. (R.) v Children's Aid Society of Metropolitan Toronto , [1995] 1 S.C.R. 315. 23
2. Canada (Human Rights Commission) v. Taylor , [1990] 3 SCR 892. 20
3. Canadian Broadcasting Corp. v. Canada (Attorney General) , 2011 SCC 2, [2011] 7, 17, 1 SCR 19. 28
4. Greater Vancouver Transportation Authority v. Canadian Federation of Students 8 — British Columbia Component , 2009 SCC 31, [2009] 2 SCR 295.
5. Irwin Toy ltd. v. Quebec (Attorney general) , [1989] 1 SCR 927. 7, 10, 11
6. Jones v. Tsige , 2012 ONCA 32. 13
7. Lavigne v. Ontario Public Service Employees Union [1991] 2 S.C.R. 211 . 29
8. Lavoie v. Canada, [2002] 1 S.C.R. 769. 21
9. M. v. H., [1999] 2 S.C.R. 3. 20
10. Mills v. The Queen , [1986] 1 S.C.R. 863. 16
11. Montréal (City) v. 2952-1366 Québec Inc ., 2005 SCC 62, [2005] 3 SCR 141. 7
12. R. v. Advance Cutting & Coring Ltd. , [2001] 3 S.C.R. 209. 29
13. R. v. A.M. , [2008] 1 S.C.R. 569. 17
14. R v Beare , [1988] 2 SCR 387. 23
15. R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295. 26
16. R. v. Cole , 2012 SCC 53. 17
17. R. v. Morgentaler , [1988] 1 SCR 30. 16
18. R v. National Post , 2010 1 SCR 477. 11
19. R. v. O'Connor , [1995] 4 SCR 411. 16, 23
20. RWDSU v. Dolphin Delivery Ltd. , [1986] 2 S.C.R. 573. 9
21. R. v. Wise , [1992] 1 S.C.R. 527. 17
12
PART VI LIST OF STATUTES
The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 Rights and freedoms in Canada 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Fundamental Freedoms
Fundamental freedoms 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.
Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Equality before and under law and 15. (1) Every individual is equal before and equal protection and benefit of law under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Affirmative action programs (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
13
Loi constitutionnelle de 1982, Annexe B de la Loi de 1982 sur le Canada (R-U), 1982, c 11
Droits et libertés au Canada 1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique.
Libertés fondamentales
Libertés fondamentales 2. Chacun a les libertés fondamentales suivantes :
a) liberté de conscience et de religion; b) liberté de pensée, de croyance, d'opinion et d'expression, y compris la liberté de la presse et des autres moyens de communication; c) liberté de réunion pacifique; d) liberté d'association.
Vie, liberté et sécurité 7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
Égalité devant la loi, égalité de 15. (1) La loi ne fait acception de personne et bénéfice et protection égale de la loi s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques.
Programmes de promotion sociale (2) Le paragraphe (1) n'a pas pour effet d'interdire les lois, programmes ou activités destinés à améliorer la situation d'individus ou de groupes défavorisés, notamment du fait de leur race, de leur
origine nationale ou ethnique, de leur couleur, de leur religion, de leur sexe, de leur âge ou de leurs déficiences mentales ou physiques. 14
Personal Information Protection Act, S.A. 2003, c. P-6.5, Factum of the Appellant, Information and Privacy Commissioner, p. 58
Personal Information Protection Act Regulations, Alta. Reg. 366/2003, Factum of the Appellant, Information and Privacy Commissioner, p. 96
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Privacy Act, RSBC 1996, c 373 Current version: in force since Dec 1, 2007
Link to the latest http://canlii.ca/t/849p version : Stable link to this http://canlii.ca/t/jj79 version : Privacy Act, RSBC 1996, c 373,
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PRIVACY ACT [RSBC 1996] CHAPTER 373
Violation of privacy actionable 1 (1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.
(2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others. (3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties. (4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.
Exceptions 2 (1) In this section:
"court" includes a person authorized by law to administer an oath for taking evidence when acting for the purpose for which the person is authorized to take evidence;
"crime" includes an offence against a law of British Columbia.
(2) An act or conduct is not a violation of privacy if any of the following applies: (a) it is consented to by some person entitled to consent; (b) the act or conduct was incidental to the exercise of a lawful right of defence of person or property; (c) the act or conduct was authorized or required under a law in force in British Columbia, by a court or by any process of a court; (d) the act or conduct was that of (i) a peace officer acting in the course of his or her duty to prevent, discover or investigate crime or to discover or apprehend the perpetrators of a crime, or (ii) a public officer engaged in an investigation in the course of his or her duty under a law in force in British Columbia, and was neither disproportionate to the gravity of the crime or matter subject to investigation nor committed in the course of a trespass. (3) A publication of a matter is not a violation of privacy if (a) the matter published was of public interest or was fair comment on a matter of public interest, or (b) the publication was privileged in accordance with the rules of law relating to defamation. (4) Subsection (3) does not extend to any other act or conduct by which the matter published was obtained if that other act or conduct was itself a violation of privacy.
Unauthorized use of name or portrait of another
3 (1) In this section, "portrait" means a likeness, still or moving, and includes
(a) a likeness of another deliberately disguised to resemble the plaintiff, and
(b) a caricature. (2) It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.
(3) A person is not liable to another for the use for the purposes stated in subsection (2) of a name identical with, or so similar as to be capable of being mistaken for, that of the other, unless the court is satisfied that
(a) the defendant specifically intended to refer to the plaintiff or to exploit his or her name or reputation, or
(b) either on the same occasion or on some other occasion in the course of a program of advertisement or promotion, the name was connected, expressly or impliedly, with other material or details sufficient to distinguish the plaintiff, to the public at large or to the members of the community in which he or she lives or works, from others of the same name. (4) A person is not liable to another for the use, for the purposes stated in subsection (2), of his or her portrait in a picture of a group or gathering, unless the plaintiff is
(a) identified by name or description, or his or her presence is emphasized, whether by the composition of the picture or otherwise, or (b) recognizable, and the defendant, by using the picture, intended to exploit the plaintiff's name or reputation. (5) Without prejudice to the requirements of any other case, in order to render another liable for using his or her name or portrait for the purposes of advertising or promoting the sale of (a) a newspaper or other publication, or the services of a broadcasting undertaking, the plaintiff must establish that his or her name or portrait was used specifically in connection with material relating to the readership, circulation or other qualities of the newspaper or other publication, or to the audience, services or other qualities of the broadcasting undertaking, as the case may be, and (b) goods or services on account of the use of the name or portrait of the other in a radio or television program relating to current or historical events or affairs, or other matters of public interest, that is sponsored or promoted by or on behalf of the makers, distributors, vendors or suppliers of the goods or services, the plaintiff must establish that his or her name or portrait was used specifically in connection with material relating to the goods or services, or to their manufacturers, distributors, vendors or suppliers.
Action to be determined in Supreme Court
4 Despite anything contained in another Act, an action under this Act must be heard and determined by the Supreme Court.
Action does not survive death
5 An action or right of action for a violation of privacy or for the unauthorized use of the name or portrait of another for the purposes stated in this Act is extinguished by the death of the person whose privacy is alleged to have been violated or whose name or portrait is alleged to have been used without authority.
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