Canada: Overview of Proposed PIPEDA Amendments

On May 25, 2010, the Minister of Industry tabled amendments to the federal private sector privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA). PIPEDA was introduced in 2001 and has been applicable to many private sector enterprises since 2004. Section 29 of PIPEDA requires Parliament to review Part 1 of PIPEDA every five years and the House Standing Committee on Access to Information, Privacy and Ethics (ETHI) undertook that review in 2006, issuing its final report and recommendations in May of 2007. Over three years later, this bill will amend PIPEDA in several significant ways, including to:

  • require organizations to report material breaches of security safeguards to the Privacy Commissioner and to notify certain individuals and organizations of breaches that create a real risk of significant harm, and
  • permit organizations, for certain purposes, to use and disclose, without the knowledge or consent of the individual, personal information related to prospective or completed business transactions.

The most significant proposed amendments are the breach notification requirements. Breach will be defined as loss of, unauthorized access to, or unauthorized disclosure of personal information resulting from a breach of the organization's security safeguards or from a failure to establish those safeguards. Only the Alberta statutory equivalent to PIPEDA currently has a breach notification requirement, but unlike the Alberta statute which requires breaches to be reported to the Alberta privacy commissioner if there is the possibility of harm to even one individual whereupon the Alberta privacy commissioner will then determine if individual notification is required, the PIPEDA amendments will require organizations to report to the Privacy Commissioner any breaches of security safeguards which the organization has determined are material. Materiality will be assessed on criteria that include sensitivity of the information, the number of individuals affected and whether the breach is indicative of a systematic failure of security. A second notification provision would require the organization to also notify affected individuals and organizations of breaches if the breach creates a "real risk" of significant harm to them, with real risk to be defined non-exhaustively as including bodily harm, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft negative effects on the credit record and damage to or loss of property. As a result, under PIPEDA a breach could result in a notification to the individual but not the Privacy Commissioner and vice versa.

The proposed bill also remedies a flaw in the current legislation that makes certain aspects of due diligence in business transactions difficult, if not impossible, by restricting the ability of a vendor to disclose to a potential purchaser personal information relevant to the transaction (such as information relating to employees and customers) without the consent of the affected individual. Under the amendments, an organization will be permitted to use and disclose personal information without the knowledge or the consent of the individual if the information is essential to the completion of the business transaction and provided that contractual confidentiality safeguards are in place as between the parties to the transaction. The transactions include purchase or sale of a business, mergers, amalgamations, financings, leases and joint ventures. If the proposed transaction successfully completes, there would be a post-closing notification to affected individuals whose personal information may have been disclosed or transferred. However, transactions where the primary purpose is the purchase and sale, or other transfer, of personal information will not benefit from this exemption.

The amendments will clarify what constitutes valid consent for the collection, use or disclosure of personal information. Currently under PIPEDA, a consent to the collection, use and disclosure of personal information must be an informed consent in order to be valid. The amendments would add a provision that consent of an individual is only valid if it is reasonable to expect the individual understands the nature, purpose and consequences of the collection, use or disclosure of the personal information to which he/she is consenting, although arguably understanding the conquences of consent is a factor of informed consent. It may be that this addition will at least in part address the ETHI recommendation that the treatment under PIPEDA of the consent of a minor be revisited.

Other proposed amendments will:

  • permit the disclosure of personal information without the knowledge or consent of the individual for the purposes of identifying an injured, ill or deceased individual and communicating with their next of kin; performing police services; preventing, detecting or suppressing fraud; or protecting victims of financial abuse.
  • clarify the meaning of lawful authority for the purpose of disclosures to government institutions of personal information without the knowledge or consent of the individual;
  • permit federal works, undertakings and businesses to collect, use and disclose personal information without the knowledge or consent of the individual to establish, manage or terminate employment relationships;
  • provide a framework for organizations to notify individuals proactively about disclosures of their personal information made in certain circumstances to government institutions;
  • permit organizations, for certain purposes, to collect, use and disclose, without the knowledge or consent of the individual, personal information contained in witness statements related to insurance claims, or produced by the individual in the course of their employment, business or profession.

The amendments also provide that an individual's "business card" information (name, title, business telephone number and email) is not, when used in the business context, subject to PIPEDA, finally drawing a clearer line between personal information, which has the protection of PIPEDA, and business information, which does not. Similarly, an organization will be permitted to gather and use personal information without the knowledge or consent of the subject individual, if the information is produced for work purposes.

In making its recommendations, ETHI benefitted from the experience of Alberta and British Columbia under their privacy statutes, both of which were enacted after PIPEDA, and also looked to the equivalent Québec legislation, in assessing amendments to PIPEDA. While the amendments do not address every recommendation of ETHI and may not fully satisfy the federal Privacy Commissioner, who, among other positions put forward, advocated that her office not be restricted to responding to individual complaints and be given a general public interest authority to investigate privacy issues, the proposed amendments will bring the federal private sector privacy statute more in line with the equivalent provincial statutes of Alberta and British Columbia and represent a necessary upgrading and updating of a statute that impacts many private sector enterprises on a daily basis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions