Canada: Considerations In Drafting Privacy Policies

There is currently a patchwork of privacy legislation in force across Canada that applies, in different degrees, to privacy sector organizations. In all Canadian jurisdictions, there is some form of privacy legislation that protects the confidentiality of personal information and limits the manner in which private sector organizations may collect, use, disclose and retain personal information in the course of their commercial activities and, in some jurisdictions, in relation to their employees.

Ensuring Compliance with Federal and Provincial Privacy Legislation

Regardless of your jurisdiction, the following measures must be followed by organizations when implementing privacy policies and practices in order to comply with applicable privacy legislation. Even if you operate solely in a jurisdiction such as Ontario (where private sector privacy legislation governing the use of employee personal information does not exist), these measures provide a useful guideline as to "best practices" for organizations that wish to implement privacy policies and practices applicable to their employees.

1. Appoint a "Privacy Officer" or "Privacy Committee"

Organizations must designate an individual or individuals to be responsible for personal-information-handling practices. These duties may be further delegated to one or more individuals. Many organizations satisfy this requirement by creating the position of "Privacy Officer" or a "Privacy Committee" comprising representatives from areas of the business involved in the collection, use, disclosure and retention of personal information, such as: purchasing, sales, records management, information technology and human resources. There is no requirement that the accountable individual(s) be employed by the organization, nor is there a requirement that they be located in Canada. The name or title and business contact information of the responsible individual(s) must be made readily available upon request.

In the initial stages, the individual(s) responsible for privacy compliance will assist in:

  • undertaking a privacy audit;
  • implementing policies and procedures designed to protect personal information;
  • establishing policies and procedures to receive and respond to complaints and inquiries;
  • training staff and communicating information about the applicable privacy policies and practices; and
  • developing and making available information to explain privacy policies and procedures.

Organizations will also need to build in processes for dealing with requests for access to personal information, and for interacting with the applicable Privacy Commissioner in the event of an investigation.

The ongoing role of the Privacy Officer or Privacy Committee will be to analyze privacy issues and implement action plans in circumstances where the organization is not compliant with applicable Canadian privacy legislation. The Privacy Officer or Privacy Committee should also be responsible for acting as a champion for privacy protection within the organization and for ensuring that privacy issues are taken into account when considering new or amended business processes.

2. Undertake a Privacy Audit

An organization is required to undertake an audit of its current personal-information-handling practices in relation to its employees in order to accurately assess: (a) what personal information an organization collects, uses, discloses and retains; (b) how, why and where such personal information is collected, used, disclosed and/or retained; and (c) to whom such personal information is disclosed. In the course of completing the privacy audit, an organization's Privacy Officer or Privacy Committee should:

  • identify all of the personal information currently held by the organization;
  • ascertain where this personal information is kept, whether in paper files or in electronic databases;
  • identify why the personal information is collected and how it is being used;
  • identify whether any information other than personal information could be collected that would serve the purpose for which the personal information is collected;
  • identify any third parties from whom the personal information is collected, if not directly from individuals;
  • identify any third parties to whom the personal information is disclosed or transferred;
  • identify who within the organization has access to the personal information and why;
  • ensure that any personal information collected by the organization is collected for purposes that are reasonable in the circumstances;
  • ensure that the purposes for which the personal information is collected are communicated when the information is collected;
  • ensure that individuals have provided their informed consent to the collection of their personal information and for any subsequent use or disclosure of that personal information; and
  • ensure that the personal information collected by the organization is accurate, complete, up-to-date and secured in a manner appropriate in all circumstances, with regard to the sensitivity of the personal information obtained.

3. Develop and Implement Privacy Policies and Practices

Once the privacy audit is complete, the Privacy Officer or Privacy Committee should use the information gathered through the audit process to develop privacy policies and practices applicable to personal information the organization collects, uses and discloses in relation to employees. Such policies must:

  • identify the types of personal information collected, used and disclosed by the organization;
  • identify the purposes for which such personal information is collected, used and disclosed by the organization;
  • identify the third parties to whom the organization may disclose the personal information, and why such personal information is disclosed to these third parties;
  • identify the security safeguards that the organization has in place in order to ensure the security and confidentiality of the personal information;
  • advise individuals as to how they may obtain access to their personal information and as to how they may withdraw their consent to the collection, use, retention or disclosure of their personal information; and
  • advise individuals as to how they can make inquiries regarding the organization's personal-information-handling practices and the personal information held by the organization.

Once developed, the privacy policies will have to be made readily accessible. One of the obligations imposed by applicable Canadian privacy legislation is to make specific information about the policies and practices that the organization has adopted with respect to the management of personal information readily available, including:

  • the name or title and the address of the person(s) who is/are accountable for the organization's privacy policies and practices and to whom complaints or inquiries can be forwarded;
  • the means of requesting access to personal information held by the organization; and
  • a copy of any brochures or other information that explain the organization's policies and practices.

4. Develop and Implement Safeguards

Organizations are required to make reasonable security arrangements to prevent unauthorized access, collection, use, disclosure, copying, modification, disposal or destruction of personal information. By way of example, the Personal Information Protection and Electronic Documents Act (PIPEDA) states that the methods of protection may vary according to the sensitivity of the information, and should include:

  • physical measures, for example, locking filing cabinets and restricting access to offices;
  • organizational measures, for example, requiring security clearances and limiting access on a need-to-know basis; and
  • technological measures, for example, using passwords and encryption.

Following the completion of the privacy audit, an organization should develop and implement policies and procedures designed to ensure that its personal information security meets the general requirements of applicable Canadian privacy legislation.

5. Develop and Implement a Policy for Responding to Privacy Inquiries

Organizations are also required to establish a process whereby an individual can obtain access to his or her personal information that is held by the organization. This may be best achieved by providing any employees who are or may be involved in receiving and responding to requests for access to personal information or other privacy inquiries with written guidelines as to how to deal with such requests. Such guidelines should include a detailed outline of the organization's policy with respect to responding to general privacy inquiries, specific requests for access to personal information, and complaints with regard to the organization's handling of personal information. Such guidelines should also include timelines for responding to such inquiries, requests and complaints. The overall purpose of these guidelines is to ensure consistency across the organization with respect to the handling of privacy-related inquiries.

6. Train Staff and Roll Out Privacy Policies and Practices

Once the privacy policies and procedures described above are ready to be implemented, any employees who are or may be involved in the collection, use or disclosure of personal information, or who may be required to respond to an individual's inquiry regarding the handling of their personal information by the organization, or regarding the organization's general personal information handling practices, should receive training regarding the organization's privacy policies and procedures.

In addition, the organization must ensure that its employees, suppliers, customers and other individuals to whom the privacy policy applies are made aware of the organization's privacy policies.

7. Ongoing Monitoring and Review

Following the implementation of these policies and procedures, an organization will also be required to review them on a periodic basis in order to ensure they remain accurate, complete, up-to-date and compliant with applicable Canadian privacy legislation.

Conclusion

Background

Federal Private Sector Privacy Legislation

On January 1, 2001, the Personal Information Protection and Electronic Documents Act, commonly referred to as PIPEDA, came into force. It is the first privacy legislation applicable to private sector organizations in Canada.

Between January 1, 2001 and December 31, 2003, PIPEDA applied only to private sector organizations that fell within the definition of a "federal work, undertaking or business" under Canada's Constitution Act, 1982. The types of organizations that fall within this definition include banking institutions, airlines, railways and telecommunications companies. With respect to these types of organizations, PIPEDA applies to personal information collected, used and disclosed:

  • in the course of their commercial activities; and
  • in relation to employees.

On January 1, 2004, PIPEDA's scope expanded to apply to provincially regulated organizations in relation to personal information collected, used and disclosed by such organizations in the course of their commercial activities. PIPEDA will continue to apply to personal information collected, used and disclosed by provincially regulated organizations in the course of their commercial activities unless and until a province in which such an organization is located or is otherwise subject to the laws of such province, passes legislation which is "substantially similar" to PIPEDA.

The gap in the applicability of PIPEDA to employee personal information, although not expressly stated in PIPEDA (but confirmed by the federal Privacy Commissioner), is rooted in the constitutional division of powers between the federal and provincial levels of government in Canada. The Federal Government does not have the constitutional power to pass legislation applicable to provincially regulated employers with respect to matters relating to their employees.

Provincial Private Sector Privacy Legislation

Currently, there are only three provinces in Canada that have enacted generally applicable private sector privacy legislation:

  • An Act respecting the protection of personal information in the private sector (Québec PIPA), which came into force in 1994;
  • Alberta's Personal Information Protection Act, which came into force on January 1, 2004; and
  • British Columbia's Personal Information Protection Act, which came into force on January 1, 2004.

Under Section 26(2)(b) of PIPEDA, the Governor in Council is empowered to exempt provincially regulated organizations from the application of PIPEDA if they operate within a Province where legislation is declared "substantially similar" to PIPEDA. The privacy legislation passed into law by the Provinces of British Columbia, Alberta and Québec, respectively, has been declared "substantially similar" by the Governor in Council. There are, however, specific and significant differences between the privacy legislation passed by these Provinces that must be taken into account when developing privacy policies and procedures applicable to employees working in those Provinces.

Principles Underlying Canadian Private Sector Privacy Legislation

The federal and provincial privacy legislation described above is premised on the fundamental principle that an organization cannot collect, use or disclose personal information about an identifiable individual without the knowledge and consent of that individual, subject to the limited exceptions described within the legislation itself.

The term "personal information" is broadly defined by Canadian privacy legislation as including any information about an identifiable individual, or information that allows an individual to be identified, but does not generally include business contact information (i.e., name, title, business address, telephone, facsimile, and e-mail address). "Business contact information" is not excluded from the definition of "personal information" under the Québec PIPA. There are other variations of, exceptions to, and exclusions from the definition of "personal information" set out in Canadian privacy legislation that must be taken into account when developing privacy policies and procedures.

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 Mondaq.com.

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

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.