Canada: Main Vulnerabilities And Best Practices In Data Protection - A View From The Inside

Last Updated: November 7 2014
Article by Chantal Bernier

Over five and half years at the Office of the Privacy Commissioner of Canada (OPC), I have read countless breach notifications from public and private organisations. Depending on the severity of the breach, assessed according to the gravity of consequences on individuals and the depth of failings of the organisation, some breaches were merely acknowledged, others were resolved and others were investigated. On the basis of this experience, I have observed three main vulnerabilities that cut across all types of organizations. 

This article seeks to share insights as an "alert", so to speak, to the vulnerabilities to watch for in protection of personal information. It is also an observation on some best practices in that regard.

Vulnerability #1: cyber-security

This will come as no surprise. At best, it may be a confirmation that you are not alone. The sophistication and volume of cyber-attacks are pinning down even the most powerful, resourceful organisations. But in every case, no matter the size and status of the organisation, cyber-security breaches expose cyber-security vulnerabilities.

My remarks on this point relate to a composite of cases and the trends it shows. My experience and my discussions with managers bring me to alert organisations to two common mistakes in relation to cyber-security: underestimating risk and characterization of cyber-security as a strictly technological issue.

1. Underestimating risks

Yes, it takes a thief to take a thief. Honest people do not assume dishonesty and malicious intent. A well-balanced CEO does not readily think that a young, lonely youth would find it amusing to disrupt a company's technological infrastructure. Also, too many business people, being more focussed on business than criminal trends, are unaware of the breadth of the underground economy of personal data theft and its high returns. The result is an insufficient focus and investment in cyber-security through underestimating risk. 

Throughout the years and from my conversations with business people across the country I have drawn a few salient points on the phenomenon of underestimating risk: 

  • Fascination with technology too often trumps vigilance about its risks. In a move to innovate, some organisations step away from the beaten path (for example, by adopting Bring Your Device – BYOD- policies) before mastering all the risks. 
  • Technological protection of personal data is often seen as accessory, even extrinsic, to the company's line of business (renovations, kitchen appliances, textile, etc...) and, even in big businesses, senior management is not sufficiently seized of cyber-security issues.
  • Also in both small and big business, under-estimation of risk and insufficient engagement of senior management leads to financial decisions that neglect investment in cyber-security. Yet, losses incurred by companies that have been breached, demonstrate how allocation of resources to cyber security up front can avoid heavy costs down the road.
  • Because the need for initial investment is minimal and start up is simple, the online world gives access to entrepreneurs who are ill-prepared and focussed on their business objectives at the expense of managing cyber-security risks. 

In all cases, a greater alert to criminal trends, more diligence in information security and better integration of information security to business management would have spared the organisation money and embarrassment. 

The federal government is no exception to this lure of technology ahead of a complete assessment of risk. When I led the OPC 2010 Audit of Wireless Technology in Certain Federal Entities, we found that none of them had completed Threat and Risk Assessments (TRAs) before adopting the technology. It would not be unreasonable to extrapolate this finding to the private sector. At the very least, it may serve as a warning for us all on underestimation of risk.  

2. Approaching cyber security as strictly a technological issue

The OPC technologists have supported me in many complex files. They often took me to the conclusion that a technological breach was not necessarily a failing of the technological infrastructure but rather the failing to see cyber-security as a multi-faceted ecosystem. They taught me that cyber-security rests upon an ecosystem of protection grouping four main components: i) physical controls (locks, access restrictions, access supervision...); ii) technical controls (encryption, access controls, TRAs...); iii) administrative controls (assets management, inventory, identification of assets...) and iv) personnel security (suitability, training, supervision, disciplinary measures...). As in any eco-system, the components are inter-dependent, and when one fails, all fail. The OPC investigation I made public in 2014 on the loss at Employment and Social Development Canada (ESDC) of a hard drive containing the personal information of nearly 600,000 Canadians, is a useful illustration of this point. 

In short, the investigation brought out the following: personal data relating to student loans, including financial data, had been saved on a portable hard drive; the drive was not identified, was not encrypted and was stored in a drawer that was not locked; no one had been assigned responsibility for protection of the drive and employees were not aware of its content nor of its vulnerability; it was not tracked by asset control and no one could track it or, at least, no one did. 

Yet, the investigation also brought out that ESDC had robust polices and governance structures for information security. In addition it had a strong technological infrastructure. 

It was in the interdependence of the components of the ecosystem that protection failed: policies that required physical protection of material were developed but not followed and their implementation was not supervised; technological criteria were stated but their application was not monitored. Asset management was deficient and training of employees did not match their level of responsibility.

What struck me most about this investigation is that it was about one  of the most sophisticated and privacy protective organisations. However, there was insufficient integration of cybersecurity to overall departmental management  at every level. Integration would have led to greater vigilance in relation to  training, supervision and implementation of ongoing controls essential to personal data protection. 

In my view, this example serves as a lesson to us all. I directed the investigation to deliver a Report of Findings that could serve as a reference manual for any organisation holding personal data. It may therefore serve as a guide for any public or private organisation. 

Vulnerability #2: Human error

The case of ESDC is also an illustration of this second vulnerability: in this case as in so many others, it is human error that brings down the data protection regime. Human error is in fact the most common cause of data breach. On the basis of the cases I have dealt with, human error stems from two main failings: insufficient digital literacy and lack of monitoring. 

1. Insufficient digital literacy

As the chain is only as strong as its weakest link, failure in employee digital literacy will bring down the most robust privacy framework. Numerous incidents that have been made public demonstrate the consequences of insufficient employee digital literacy: for example, one employee left on a colleague's desk, with no physical protection, an unencrypted USB key containing medical information of nearly 5,000 people; the employee thought it was more secure than sending the information via email – the key was never seen again; others , as the OPC found in its 2010 Audit of Wireless Technologies in Certain Federal Entities, protect their portable devices with weak passwords, such as 1,2,3,4 .  

In none of such cases I have dealt with do I recall signs of malice. On the contrary, we were faced with a contrite employee who was ignorant of the technology afforded as a work tool. The organisation's failing was that of entrusting employees with technological tools without ensuring they have the knowledge to use them.  

2. Lack of monitoring

An audit and an investigation I led at the OPC in the private sector come to mind in relation to this point.

One OPC audit found that a company had a sound framework of privacy policies and practices but needed increased monitoring to ensure compliance. For example, storage policies were clear but were not followed. Wiping used computers for re-sale was subject to clear procedures. Yet, out of the 149 computers the OPC examined, 54 had been put ready for re-sale while still containing data of the previous owner. 

This discrepancy between the policy framework and its application underscores the importance of  monitoring. Since then, the company has complied with all the recommendations of the OPC.  

The investigation that is relevant here is one which revealed how an employee had issued a product without going through the company's privacy controls. And no one checked. 

While the unlawful collection of personal information was inadvertent, it remains a failing of governance and monitoring within the company. It clearly did not have the governance framework to ensure compliance with privacy law nor the effective monitoring practice to verify it.  This company as well accepted the recommendations of the OPC.   

Vulnerability #3: Employee snooping

The case of Jones vsTsige (ONCA 2012), is only one among many. A bank employee was found liable for damages after violating privacy. She had accessed a person's financial information, over 100 times, for personal reasons.

Privacy authorities across the country receive numerous complaints about unauthorised access by employees to their organisation's databanks. Main trends are around sentimental and financial issues. By way of example, employees access their organisation's data banks to seek financial information on their former spouses or on their former spouses' new partners; in one case, the employee had accessed the medical records of a former partner; another had unlawfully accessed the tax information of nearly two hundred persons directly or indirectly related to a new lover; others have sought and disclosed their organisation's information on celebrities.  

Examples abound across the country and across types of organisation.  The challenge, of course, is to ensure a system of access controls wide enough to allow efficient operations but restricted enough to avoid abuse. 

It appears that the proper balance between an operational access control regime and privacy protection has not yet been achieved, even in well-resourced organisations. In Canada, repeated cases of such intrusions can lead to a determination of reasonable grounds to believe there is contravention of privacy law. This can be the basis of an OPC audit. Hopefully, this will serve as a call to action for organisations, all weakened by this vulnerability. 

Best practices

If the number of incidents, investigations and audits I have led has given me a basis to identify vulnerabilities, it has also provided me with an indication of best practices. They stem from the vulnerabilities I have described: 

1. Have an expert do a TRA before adopting new technology, and present it to senior management. 

2. Integrate data protection issues to management issues in general and to the management table.

3. Submit the use of technology to adequate related training and ensure maintenance of that knowledge.

4. To detect and avoid non-unauthorised access to your organisation's personal databanks, establish an audit trail system to track electronic access and a system for immediate notification of non-authorised access; also,  subject physical access to appropriate restrictions according to the sensitivity of the data.

5. Make employees responsible for protection of the data they control and ensure their proper supervision by their superiors in an efficient governance framework for compliance assurance throughout the organisation.

Finally, I refer you to a guide I developed with the Alberta and British Columbia Information and Privacy Commissioners entitled "Getting Accountability Right with a Privacy Management Program". The guide will provide you, I hope, with a methodical and verifiable approach to counter current vulnerabilities in data protection. 

About Dentons

Dentons is a global firm driven to provide you with the competitive edge in an increasingly complex and interconnected marketplace. We were formed by the March 2013 combination of international law firm Salans LLP, Canadian law firm Fraser Milner Casgrain LLP (FMC) and international law firm SNR Denton.

Dentons is built on the solid foundations of three highly regarded law firms. Each built its outstanding reputation and valued clientele by responding to the local, regional and national needs of a broad spectrum of clients of all sizes – individuals; entrepreneurs; small businesses and start-ups; local, regional and national governments and government agencies; and mid-sized and larger private and public corporations, including international and global entities.

Now clients benefit from more than 2,500 lawyers and professionals in 79 locations in 52 countries across Africa, Asia Pacific, Canada, Central Asia, Europe, the Middle East, Russia and the CIS, the UK and the US who are committed to challenging the status quo to offer creative, actionable business and legal solutions.

Learn more at

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. Specific Questions relating to this article should be addressed directly to the author.

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
25 Nov 2016, Seminar, Toronto, Canada

On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (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

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’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.


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.


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 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.


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.


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.


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.


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

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

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

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