Canada: Canada’s New Privacy Laws—What Employers And Plan Sponsors Need To Know

This article was originally published in Blakes Bulletin on Pension & Benefits - January 2004

Federal and emerging provincial privacy laws on handling personal information will have a profound effect on employers, benefit plan administrators and sponsors. In fact, privacy procedures and policies should already be in place in your organization.

On January 1st, 2004, as almost every business owner and manager has likely heard, the final phase of Ottawa’s privacy legislation came into full force and now applies to all federally and provincially regulated private sector organizations.

While much attention has focused on how the federal privacy law will affect the general operations of organizations, less has been said about its impact on pension and benefit plans. It is vital for employers and plan sponsors to not only understand how the federal and provincial privacy laws may affect them, but also what they need to know and do now to be in compliance.

Canada’s New Privacy Regime

Since 2001, the federal government has phased-in legislation governing the collection, use and disclosure of personal information in the course of commercial activities. In its Personal Information Protection and Electronic Documents Act, "personal information" is defined as any information about an identifiable individual, but does not include the name, title, business address or telephone number of an employee of an organization.

The primary focus of the federal law is on personal information about customers or clients of organizations. For those operating a federal work, undertaking or business (such as banks), however, the law also applies to personal information about employees, as well as customers.

In any provinces where legislation is enacted that is "substantially similar" to the federal law, the provincial law dominates. That said, extra-provincial or inter-provincial collection, use or disclosure of personal information is still governed by federal law.

So far, Québec is the only province with private sector privacy legislation that is in force and "substantially similar" to the federal law. British Columbia and Alberta have enacted privacy laws effective January 1, 2004. The British Columbia and Alberta laws had not, however, as of the date of writing, been designated as substantially similar. Ontario recently introduced Bill 31, the Personal Health Information Protection Act, 2003 but, as yet, has not introduced comprehensive privacy legislation. The Québec, Alberta and British Columbia legislation all protect employee information.

To meet the requirement to be "substantially similar," any provincial privacy laws will likely be based on the following 10 principles set out in the federal law:

Accountability. Organizations are responsible for personal information in their possession or custody, even when transferred to a third party for processing. An organization must appoint someone to be accountable for compliance and must implement policies and practices giving effect to the 10 principles.

Identifying Purposes. Organizations must identify and document why personal information is needed at or before its collection. Any new purpose must be identified before use and proper consent obtained.

Consent. Knowledge and consent of the individual is required for collection, use or disclosure of personal information, except in limited circumstances. Reasonable expectations and the sensitivity of the information are relevant to issues of consent. Organizations cannot tie the provision of products or services to a requirement for consent, except to the extent required to fulfil explicitly specified and legitimate purposes. Finally, individuals may withdraw consent with limited exceptions and must be given an opportunity to opt out of non-essential uses and disclosures of personal information.

Limiting Collection. The amount and type of personal information collected must be limited to what is necessary to fulfil the stated purposes. Organizations cannot collect information indiscriminately or through deception.

Limiting Use, Disclosure and Retention. Use and disclosure of personal information is limited to the purposes for which it was collected, except as required by law or with the consent of the individual. Organizations will need retention guidelines and procedures. Personal information that is no longer needed should be destroyed, erased or made anonymous. Guidelines for the destruction of personal information are also required.

Accuracy. Personal information must be as accurate, complete and up-to-date as necessary for the purposes for which it is to be used. Note, however, the federal law does not allow for ongoing updating of personal information, unless necessary for the purposes for which the information was collected.

Safeguards. Organizations must have security safeguards appropriate to the nature and sensitivity of the personal information to protect against loss, theft and improper access, disclosure, copying, use or modification. This includes physical, organizational and technological protection measures.

Openness. Organizations must make policies and procedures easily available to anyone. This must include the name or title and contact information of the person in the organization accountable for privacy policies and to whom inquiries or complaints can be forwarded.

Individual Access. An individual is entitled to be informed, subject to limited exceptions, of the existence, use and disclosure of his or her personal information and given access to that information. Requests must be in writing and must be addressed by the organization within 30 days (in some cases, a 30-day extension may be allowed). Individuals may challenge the accuracy and completeness of information and require it be amended as appropriate.

Challenging Compliance. Individuals are also entitled to address a challenge concerning the organization’s compliance with these principles to the designated person(s) accountable for the organization’s compliance and to have their concerns addressed.

The impact of these principles on most organizations will be quite profound. Until now, the law of privacy in Canada has had limited scope. For example, in Ontario, a generally recognized tort of invasion of privacy has not emerged, although a few lower court decisions have recognized it in limited circumstances.

What You Need To Know and Do Now

Given the heightened interest in privacy, all employers and plan sponsors must deal with the impact of the federal law and any relevant provincial legislation. It is important to know, for example, that the federal law does not "grandfather" personal information collected before January 2004. Information collected in the past, present and future will be affected. To avoid liability, priorities and plan sponsors should, on an ongoing basis:

  • Designate one or more individuals to be "accountable" for privacy compliance in all areas, including pensions and benefits.
  • Conduct, and regularly update, an internal privacy audit, examining adherence to the 10 principles in your pension and benefits practices. Examine what personal information is collected and where it goes. If you are collecting more than is necessary for the pension and benefit program, you may have to redesign policies and documentation, such as enrolment forms.
  • Prepare, and regularly review, a written privacy policy outlining information practices and how to access personal information. Ensure no punishment is applied to complainants or "whistle blowers."
  • Conduct ongoing employee education about privacy and the need to maintain confidentiality of personal information.
  • Identify the purpose for collection of information on your intake forms and restrict its use to the purposes for which it was provided.
  • Review the types of consent needed for information collected, used and disclosed.
  • Establish and monitor policies for minimum and maximum retention periods for personal information.
  • Implement and monitor data safeguards and limit access to staff with a "need to know." Also, have service providers contractually agree to privacy standards.
  • Establish and monitor a written complaint procedure that requires response within 30 days for requests for access.
  • Conduct internal audits.


Privacy is a complex and emerging area. It is prudent for employers and plan sponsors to establish proper procedures and policies to satisfy the various rules. Privacy is now one more area of governance that requires due diligence and ongoing attention.

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.

Events from this Firm
26 Oct 2018, Other, Vancouver, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

30 Oct 2018, Other, Toronto, Canada

Please join us for discussions on recent updates and legal developments in pension and employee benefits as well as employment law issues.

12 Nov 2018, Other, Toronto, Canada

Stories aren’t falsehoods. Stories are the root of all effective human communications: they motivate, animate and clarify. If you aren’t telling stories, you probably aren’t getting your point across.

In association with
Related Topics
Related Articles
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