January

The Alberta Personal Information Protection Act has been declared unconstitutional by the Supreme Court of Canada. The sweeping decision was prompted by union video surveillance of people crossing a picket line. Because PIPA does not have any exemption to allow for a union to advance its interests in a labour dispute, it was held to be an unreasonable restriction on the union's freedom of expression guaranteed by the Charter of Rights. Alberta will have 12 months to make changes to the law before the declaration of invalidity takes effect.

Over the last two years, courts have repeatedly addressed a new form of workplace violation. With these decisions they have begun transforming the face of privacy law in the workplace. With technology being a tool at the forefront of many workplaces, personal information has become vulnerable data requiring protection.

In two recent cases, the Ontario Superior Court of Justice and the Court of Appeal for Ontario both recognized this vulnerability along with the existence of the tort of invasion of privacy in Ontario. This new tort was based upon an actionable ""intrusion upon seclusion"". The Court defined this intentional tort as being one where the intrusion into the seclusion of another person 's ""private affairs or concerns"" would be found as ""highly offensive to a reasonable person"".

In terms of changes to employment law, these decisions added the welcomed caveat to an employer 's obligation to protect its employees ' privacy in the workplace. For employers, this change means that a breach of this obligation could potentially expose them to punitive damages up to $20,000. For employees, it means among other things, that they can have a ""reasonable expectation of privacy"" in their workplace while using technological tools provided by their employers in the course of their employment."

"Justice Minister Gord Wyant is looking for ways to close the so-called privacy gap left by federal laws. ""We, like Ontario and the eastern provinces, have relied on the federal legislation with respect to privacy matters in the private sector,"" said Wyant. He said there is a concern about employee records that are not covered by the federal legislation. ""We've consolidated all the labour legislation into one piece, and we think that there's a possibility of perhaps bringing some regulations forward under the employment act to cover off that issue,"" continued Wyant. He said another possibility is to revisit the province's freedom of information and privacy laws (FOIP), which he acknowledged are outdated. Privacy Commissioner Gary Dickson said the issue of employee records is only part of the gap in the legislation related to the private sector, and he isn't confident regulatory changes could address all of his concerns. Although Wyant said he isn't sure taking legislation from other provinces is the right answer, Dickson said the other western provinces have set good precedents with their laws. ""I think there's a need to overhaul FOIP, there's a need to overhaul the local authority FOIP act, there's a need to overhaul HIPA and I think we need a personal information protection law just like B.C. and Alberta have had since 2004�Why would we go a different path?"" Dickson said."