Doing Business in Canada: Privacy

by Bennett Jones LLP
Contact

Changes in the accumulation, storage and use of personal data – whether by government, employers, financial institutions or health care providers – have given rise to new and more serious privacy concerns. Given the recent evolution of privacy law worldwide and in Canada specifically, organizations considering doing business in Canada need to be aware of aspects of the Canadian legislative landscape that both address and impact the precarious balance between safeguarding personal privacy and the organization’s need to collect and use personal information.

Privacy Compliance

As of January 1, 2004, most organizations operating in Canada have been required to ensure that they collect, use and disclose personal information in accordance with applicable federal and provincial privacy legislation. That legislation regulates (in part) on the basis of:

  • The nature of the information;
  • The nature of the organization;
  • Where an activity occurs; and
  • The nature of the relationship of the organization with the individual.

Personal Information

Although the definition of personal information varies by jurisdiction, it generally refers to any information about an identifiable individual – other than the individual’s name, title and business contact information when used or disclosed for the purpose of contacting such individual in his or her capacity as a representative of an organization. 

Consent

Canada’s private sector privacy laws generally require that, before or at the time personal information is collected, individuals are made aware of:

  • The scope and nature of the personal information being collected;
  • The purposes for which their personal information is being collected, used or disclosed;
  • The jurisdictions outside of Canada where such information may be processed or stored; and
  • The name of a person who is able to answer individual questions on behalf of the collecting organization.

For the consent of an individual to such collection to be valid, it must be given voluntarily and without reliance on deceptive or misleading collection practices. As a consent given for one purpose is not valid for other purposes, organizations should try to anticipate their use and disclosure requirements in advance and develop their consent practices to address same. 

Federal and Provincial Legislation

While federal and provincial privacy legislation are similar, they do differ in a number of areas, resulting in a complex patchwork of privacy obligations that need to be addressed.  Generally, federal private sector privacy legislation applies to commercial activities involving personal information between provinces or across national borders, or undertaken by federal works, undertakings or businesses. Federal legislation also applies to commercial activities involving personal information within a province, unless the province has enacted substantially similar legislation. Thus far, Alberta, British Columbia and Québec have enacted legislation that is substantially similar to the federal legislation.

The federal legislation does not generally apply to an employee’s personal information, unless the individual is an employee of a federal work, undertaking or business, or the information is disclosed in the course of commercial activities. To some degree, the various provincial private sector privacy laws do apply to an employee’s personal information.

Jurisdiction

Where an organization undertakes activities, with respect to personal information, outside of a single jurisdiction, the organization will need to determine which jurisdictions’ privacy legislation applies, the various obligations that arise therefrom, and the best policies and practices to address those various obligations. 

How Privacy Impacts Your Business

Subject to certain exceptions, most organizations operating in Canada are now required, in part, to:

  • Appoint a person within the organization to be accountable for the organization’s privacy activities;
  • Disclose the purpose and obtain the consent of an individual for the collection, use and disclosure by the organization of the individual’s personal information;
  • Only use or disclose such personal information for the disclosed purpose, unless the organization has obtained the individual’s consent for any new purpose;
  • Allow the individual to access his or her personal information, challenge the accuracy of same, and withdraw his or her consent to the collection, use and disclosure by the organization of his or her personal information;
  • Safeguard the personal information in its custody or control;
  • Implement privacy policies and practices;
  • Train staff in respect of its privacy policies and practices; and
  • Only retain personal information for as long as is reasonably necessary to fulfill the disclosed purpose.

Dealings with Third Parties

Many organizations exchange personal information with other organizations and individuals.  These exchanges can include the outsourcing of certain activities to third parties (such as benefits administration or data processing), the exchange of information between business partners and the transfer of information as a result of the purchase or sale of a business. 

Each organization will need to review how and why it exchanges personal information with third parties, and the agreements governing those information exchanges, to determine if applicable privacy legislation permits such activities to continue and whether those agreements need to be amended. 

Outsourcing Risks

In addition to being responsible for its own compliance activities, organizations that use the services of third parties in their handling of personal information may be held responsible for the activities of such third parties. 

As a result, organizations are well advised to ensure that they have fully reviewed the activities of their service providers with respect to the organization’s personal information and that their agreements properly protect the organization. Such protection may be achieved by requiring service providers to be compliant with applicable legislation and by ensuring that the organization can look to its service providers for indemnification should a problem arise. 

Transaction Risks

The obligation to only collect, use or disclose personal information where the organization has the consent of the individual may extend to disclosure or collection activities related to a purchase, sale, merger, amalgamation, securitization or other transaction involving personal information. Federal and provincial legislation differ on whether consent is required to disclose personal information in the context of these types of business transactions. 

Organizations are well advised to consider the need for consent to transfer personal information as part of a business transaction, and the requirements of the various exemptions to such consent requirement, when designing the structure of a transaction. Careful planning to take advantage of one of the business transaction exemptions to the consent requirement can significantly reduce the costs of privacy compliance associated with such transaction. 

How Your Business Becomes Compliant

While every organization’s approach to privacy compliance needs to be tailored to the organization’s specific activities and needs, at a minimum, an organization should consider:

  • Appointing an individual to be accountable in respect of the organization’s privacy activities (often this individual is referred to as a Privacy Officer);
  • Assessing the organization’s activities in respect of personal information;
  • Establishing policies and practices to govern the organization’s activities in respect of personal information; and
  • Training the organization’s staff in respect of the organization’s privacy policies and practices. 

Conclusion

Privacy compliance can be a complex task requiring an organization to balance the need to comply with multiple privacy obligations with the need to adopt practical and manageable policies and practices. Companies considering doing business in Canada are well advised to review their expected activities in Canada in the context of applicable privacy legislation. 

Bennett Jones’ Privacy Law Group

Bennett Jones’ Privacy Law Group has performed groundbreaking work with governments, employers, institutions and both public and private information gatherers, advising on the legal implications of privacy protection and data dissemination. Our group offers both compliance and enforcement advice including in the context of corporate transactions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bennett Jones LLP | Attorney Advertising

Written by:

Bennett Jones LLP
Contact
more
less

Bennett Jones LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.