All Bets Are Off: Free Expression Trumps Privacy in Supreme Court Picketing Case

When we think of picket lines, we don’t usually think of photographs and video surveillance, but these can be essential weapons on both sides of a labour dispute. In a decision released last month, the Supreme Court of Canada recognized the importance of photo and video surveillance on picket lines – and for unions, at least, made it a constitutional right.

All Bets Are Off

The dispute in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62 began when several individuals discovered that they had been photographed and videotaped when they crossed a picket line to get to a casino. One of the individuals was the Vice-President of the casino, whose photo was taken by his striking employees and then printed on various union posters, newsletters and leaflets with “captions intended to be humorous.”

(The Supreme Court doesn’t tell us what those captions were, but I like to imagine that they were casino- and strike-related puns – “cash out or all bets are off,” “if you want a full house you’d better up the ante,” “give management the royal flush,” that sort of thing. They were probably much more banal than that, but a boy can dream.)

Anyway, the individuals complained to the Alberta Privacy Commissioner, who administers a law called the Personal Information Protection Act (“PIPA”). PIPA, like similar legislation in B.C., Quebec and the federal jurisdiction, is meant to protect privacy in an age of computers and smartphones, but the Alberta version is particularly broad. Subject to some exceptions and exemptions, PIPA prevents the collection, use and disclosure of any information about an identifiable person, by any organization, for almost any purpose. Videotaping and photographing people who try to cross a picket line is, according to the Privacy Commissioner, right out.

The union challenged the Privacy Commissioner’s decision before the Alberta Court of Queen’s Bench on the basis that PIPA was unconstitutional, because it interfered with the union’s freedom of expression. That was the dispute that worked its way up to the Supreme Court of Canada.

Express Picketing

The first question the Supreme Court had to answer was whether the union’s activities were protected by the constitutional guarantee of freedom of expression. I found it interesting that all of the parties conceded this. It’s not quite as clear to me.

Obviously, picketing is a form of expression. One of the most important purposes of picketing is to raise public awareness of the issues underlying a strike. Another is to convince the public to support the strike and by getting their goods and services elsewhere. These are fundamental parts of free expression. What about taking somebody else’s picture, though? Certainly the uses that the union made of the Vice-President’s photo were expressive, since it became part of the union’s newsletters and leaflets. But why should taking the photo, in and of itself, be protected under freedom of expression? Why should the union have a constitutional right to take photos of the other two complainants, which it apparently never used?

The Supreme Court’s answer was that one of primary purposes in taking the photos and videos was to persuade people not to cross the picket line. Since it was meant to persuade, it was expressive activity. The Supreme Court seems to be saying that since picketing itself is expressive, tactics that make the picket line more effective – by deterring people from crossing it – will also be expressive.

I have to admit I have an issue with that reasoning. I would have thought that the activity itself, taking the photograph or video, would need to be expressive in order to be protected. At least it would need to be essential to expressive activity like picketing, not just something that makes picketing more effective. But since none of the parties disputed it, and the Supreme Court accepted it, let’s move on.

A Fine Balance

The fundamental question that the Court grappled with was how to balance the picketers’ right to free expression against the privacy rights of individuals who crossed the picket line. The Court recognized the important benefits of PIPA, but ultimately found that they were trumped by free expression.

The Court seems to have focused on just how extremely broad PIPA is in general, rather than on the narrow issue of photographing and videotaping. “What is of the utmost significance in our view,” the Court found, “is that PIPA prohibits the collection, use, or disclosure of personal information for many legitimate, expressive purposes related to labour relations.” No doubt that is true. PIPA would have prohibited not just the collection of people’s images (i.e. the taking of photographs and videos), but also their use in ways that are both expressive and important to picketing: among other things, the newsletters and leaflets already discussed; raising awareness of the picketing online; and persuading police, the public, and if necessary the courts that no improper behaviour took place.

The Court, however, keeps going back to the importance to a picket line of persuading people not to cross it. That is where I still find the decision a bit problematic. Not that I am against picketing – it’s essential to our labour law system – and not that I am against unions trying to persuade people not to cross a picket line, which is important to their ability to mount an effective strike. But here we are weighing other rights in the balance. If privacy violations were necessary in order for unions to picket at all, that would be one thing, but it’s quite different to say that privacy rights should be outweighed merely because the union wishes to use a particular tactic that helps to make picketing somewhat more effective.

What About Employers?

The fact is, employers use picket line surveillance far more often than unions do. The primary purposes on the employer side are to deter violence and property damage and to collect evidence that can be used in legal proceedings, such as injunction proceedings to stop or limit picketing. Despite the pro-surveillance outcome of the case, though, employers will not have much to get excited about. Since the Supreme Court’s main concern was the importance of photographs and videotapes to picketing, the decision is unlikely to assist employers who wish to photograph and videotape picket lines in order to limit picketing.

The Bottom Line

As much as I’ve criticized the Court’s decision here, I actually believe that unions and employers should be permitted to photograph and videotape picket lines. Picket lines are tense, emotions run high, and it is important for both parties to be able to collect the best evidence of what has happened there in the event of a legal challenge. People who march on a picket line, let alone people who cross one, should know that they are in a public place where their privacy can’t be guaranteed. Furthermore, a lot of the union’s reasons for taking photos and videos, which the Supreme Court summarized, are legitimate and probably do make good labour relations sense.

What I’m not certain about is whether this should be a constitutional right, as the Supreme Court found. I’m not certain that a government that chooses for policy reasons to put privacy rights first in this situation should be unable to do so, even if it’s not the policy choice I would personally make.

Ultimately, the Supreme Court struck down PIPA but allowed it to remain in force for 12 months to give the Alberta government an opportunity to amend it. Hopefully, the government will be able to strike an appropriate balance between privacy, labour rights and freedom of expression going forward.

Supreme Court of Canada will hear Right to Strike Case

I’m finally bringing this blog back to labour law, with the news that last Thursday, the Supreme Court of Canada granted leave to appeal a decision raising an interesting and timely question: does the Canadian Constitution protect the right to strike?

strike

Stock photo from http://www.sxc.hu/photo/1197558 . I wanted a better photo for this, but apparently searching “strike” gets you bowling pictures, and searching “picket” gets you fences.

Background: The Labour Trilogy, B.C. Health Services and Fraser

The Supreme Court decided three  cases on the issue back in 1987, which came to be known as the Labour Trilogy. The question in those cases was whether the guarantee of freedom of association in the Charter of Rights and Freedoms (Charter) included a constitutional right to collective bargaining and to strike. The answer was no, and that answer stood for 20 years.

Then, in 2007, the Supreme Court decided B.C. Health Services. In that case, the province of British Columbia introduced legislation that cancelled important terms of collective agreements in the health care sector, and said that no similar terms could be included in health care collective agreements in the future. In response, the Supreme Court overturned its own previous decisions in the Labour Trilogy and said that the Charter does protect collective bargaining. The Court explained that there’s not much use in having freedom of association, if the government can just pass a law which makes the very purpose of your association pointless. That was what the B.C. government did when it unilaterally cancelled important collective agreement terms. What was the point, then, of health care workers forming an association (a union) to bargain collectively?

What B.C. Health Services did not address was the right to strike. The Court deliberately refused to discuss that question.

Following B.C. Health Services, unions began a number of constitutional challenges to labour laws that they alleged interfered with the right to collective bargaining. The Supreme Court decided to weigh in again in Ontario v. Fraser, a 2011 decision about agricultural workers in Ontario, who are not covered by the Labour Relations Act. They have a separate legal regime which allows them to form associations and have those associations address their employers; the employers have an obligation to listen and respond. But there is no formal duty of collective bargaining, there is no duty to recognize the union as the exclusive representative of the workers, and other protections that most Ontario workers get are absent.

Fraser did not exactly change the law in B.C. Health Services — in fact, the Court was very careful to say that it was applying the principles from that earlier case — but it did clarify B.C. Health Services in a way that looked quite a lot like a retreat.  Fraser stressed that from a constitutional point of view, the right to collective bargaining is a derivative right: one that derives from the freedom of association. Therefore, you don’t necessarily get constitutional protection just because the government has interfered with collective bargaining. You only get constitutional protection if the government’s actions (or inaction) make meaningful association effectively impossible. For agricultural workers, since they can form associations and the employers must listen to what the associations say and respond in good faith, workers are able to form meaningful associations. That is good enough under the Charter. Again, however, the Supreme Court did not talk about the right to strike.

Saskatchewan Federation of Labour and the Right to Strike

In 2008, the government of the province of Saskatchewan passed the Public Sector Essential Services Act. It requires employers and unions in the public sector to agree on which of their services are essential, and which employees are required to maintain those services. Any employees who are required to provide essential services will have to continue working during a strike. However, if the employer and the union cannot agree, then the employer is allowed to just impose whatever essential services requirements it wishes. The union can challenge the number of employees who the employer says it needs for essential service, but it cannot challenge whether particular services or particular job classifications are essential.

The Saskatchewan Federation of Labour, along with several public sector trade unions and unionized employees, brought a constitutional challenge alleging that the Essential Services Act violated workers’ freedom of association by denying them the right to strike (along with a number of other challenges). The Saskatchewan Court of Queen’s Bench agreed, based on the principles in B.C. Health Services and Fraser. It found that strikes are integral parts of collective bargaining, so if the Charter protects collective bargaining, it must protect strikes as well.

That decision was overturned by the Saskatchewan Court of Appeal, on a fairly technical but still important ground. The old Labour Trilogy, the Court of Appeal said, found that the Charter does not protect the right to strike. B.C. Health Services and Fraser overturned the Labour Trilogy when it came to collective bargaining, but refused to discuss the right to strike. Therefore, when it comes to the right to strike, the Labour Trilogy is still a binding precedent from the Supreme Court of Canada. It was simply not open to the Saskatchewan courts to refuse to follow it. In the words of the Court of Appeal:

In short, any decision to overturn the Labour Trilogy must be left in the hands of the Supreme Court itself. This is what the doctrine of stare decisis [i.e., the rule of precedent] demands. It follows that the Essential Services Act cannot be struck down on the basis that it limits strike activity contrary to s. 2(d) of the Charter.

After that, how could the Supreme Court say no?

A New Labour Trilogy?

The Supreme Court’s decision last week to grant leave to appeal in Saskatchewan Federation of Labour follows on the heels of granting leave for two other labour law cases, both involving the Royal Canadian Mounted Police. They have never been permitted to unionize, but they have various systems where worker representatives get to participate in committees and councils which help determine their pay. The Ontario Court of Appeal and the Federal Court of Appeal each made recent decisions which denied the Mounties constitutional protection for these types of bargaining activities.

In fact, the Ontario Court of Appeal also found for the employers in two other labour law freedom of association cases in 2012. In those cases, the Supreme Court refused to grant leave to appeal. Our firm actually represented the employer in one of those cases, and I was heavily involved in preparing the arguments. It was an extremely interesting case, and very rewarding (and relieving) that we were successful. When the Supreme Court denied our opponents leave to appeal, we got the impression that the Court, having decided similar issues in 2007 and again in 2011, just didn’t see the need to revisit them so soon.

But now the two Mountie cases and the Saskatchewan Federation of Labour case will be heard by the Supreme Court of Canada in 2014. The Mountie cases are scheduled to be heard in February. It’s unlikely that Saskatchewan Federation of Labour will be ready quite that soon, but I wouldn’t be surprised if the Supreme Court waits until it can release all three decisions together as a new Labour Trilogy. Hopefully, it will be one that clarifies the law for a while, and avoids the volume of litigation on these issues that we’ve seen since B.C. Health Services and Fraser were decided.

The Alcohol Consensus

I wanted to kick this blog off with something that we’ll all be excited about. So today’s subject will be alcohol!

Drug and alcohol testing doesn’t normally make the news unless professional athletes are involved. As a result, we tend to think of testing as an issue of cheating versus fair play, as it is when we’re talking about Lance Armstrong and Alex Rodriguez. But what if we’re talking about an average employee in an industrial workplace? In that case, drug and alcohol testing engages a much more delicate conflict: safety versus privacy.

The Bottom Line

The Supreme Court of Canada has recently held that even in a dangerous workplace, an employer is not normally permitted to engage in random alcohol testing of employees. However, random testing may be permitted if there is a demonstrated problem with alcohol abuse in the workplace, which is significant enough to warrant overriding employees’ privacy interests in the circumstances, and cannot be addressed through less intrusive means.

The Supreme Court’s decision still allows employers to require alcohol testing for employees in safety-sensitive jobs if there are reasonable grounds to believe the employee is impaired, or if there is a safety incident, accident or near miss where alcohol testing may be necessary to determine the cause.

The decision does not deal with random drug testing, or with non-union workplaces, but the same principles most likely apply.

The Analysis

There’s a Clear, Overwhelming Consensus. We Just Can’t Agree on What It Is.

Here’s what I find amusing about the Supreme Court’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (“Irving”), released on June 14, 2013. The case turned on whether an arbitration board had properly applied earlier case law. Both the majority decision (6 judges) and the dissent (3 judges) agreed that there was a clear, overwhelming consensus in that earlier case law. The majority upheld the board’s decision because it followed the consensus. The dissent would have overturned the board’s decision because it failed to follow the consensus. So it seems that the Supreme Court judges couldn’t reach consensus on what the consensus was.

What’s interesting about all of the judges’ reasoning is that arbitration boards aren’t legally required to follow previous arbitration decisions, the way judges must follow the decisions of earlier judges. The Supreme Court is now saying that nonetheless, arbitration decisions can be overturned if they depart from the existing consensus without a reasonable justification for doing so. Which makes a lot of sense, because it’s good for everybody to be able to predict how a future arbitrator might act. But it does seem to make arbitration more formal and court-like, with all the good and bad that goes along with that.

You don’t want to hear about the increasing formalization of the labour arbitration system, though. You want to hear about alcohol! So let’s move on to . . .

Safety Versus Privacy: The Alcohol Consensus

There may not be a consensus on what the consensus is, but there at least seems to be a consensus that the consensus includes the following principles.

Drug and alcohol testing is a balancing act. Forcing an employee to give you a urine or saliva sample, or even a breath sample using a breathalyser, can be a serious violation of personal privacy. On the other hand, showing up drunk to a dangerous workplace – heavy machinery, toxic chemicals, risks of electrocution – can put both the employee and his or her colleagues at risk. As a result, the question in each case is whether the safety interest outweighs the privacy interest.

For employees in safety-sensitive jobs, an employer may require alcohol testing if there is reasonable cause to suspect the employee is impaired, or if a safety incident, accident or near miss has occurred and the employer needs to learn whether alcohol was a contributing factor. In these situations, the safety concern outweighs the privacy concern.

Random testing, on the other hand, is generally not allowed. However, it might be allowed where there is a history of alcohol problems in the workplace, and means other than random testing have not been successful to address them.

What Do We Mean by a History of Alcohol Problems?

This is where the consensus (or, at least, the consensus on what the consensus is) breaks down.

The dissenting judges in Irving say that random alcohol testing is permitted in a dangerous workplace if there is evidence of alcohol problems in the workplace. In Irving, there had been about 8 alcohol-related incidents in a 15-year period, which clearly constituted evidence of a problem. The arbitration board, however, refused to permit random testing because the employer had failed to provide evidence of a significant or serious problem. According to the dissent, the board imposed a higher standard on the employer than the law demanded.

The first time I read the decision, I agreed with the dissent. None of the case law talks about needing a “significant” or “serious” problem before random testing is allowed. In a highly dangerous workplace with some kind of alcohol problem, it doesn’t make sense that an employer would have to wait until a real injury happens before it can take action.

But on a reread, I have come to appreciate the approach of the majority. They return to the principle that underlies all of the various consensuses (consensi?): a balancing between safety and privacy. They are not actually saying that random alcohol testing can never be imposed in the absence of a “significant” or “serious” alcohol problem. What the majority are saying is that in the particular circumstances of the Irving case, the evidence about safety concerns just wasn’t compelling enough to override employee privacy rights.

What the Supreme Court of Canada is saying is that in every case, the safety benefits of testing must be balanced against the effects on employee privacy. And that’s hard to argue with.

Disclaimer: This blog post is intended to provide readers an update on the law along with the author’s personal reflections. Nothing in this post or in the comments should be taken as legal advice or as creating a lawyer-client relationship. For more information or to inquire about obtaining legal advice, please see the Contact and Links section of this site.