Canada: One Step Closer To Mandatory Breach Reporting Across Canada: Consultations Open

On March 4, 2016, Innovation, Science and Economic Development Canada (Ministry) published a consultation document soliciting input from stakeholders on the development of regulations that will support mandatory data breach reporting requirements under the Personal Information Protection and Electronic Documents Act (PIPEDA). Parties interested in participating in this consultation must provide comments in writing by May 31, 2016. 


In June of 2015, the Canadian Parliament enacted the Digital Privacy Act (DPA), which made a number of amendments to PIPEDA (for more information, see our June 2015 Blakes Bulletin: Digital Privacy Act Receives Royal Assent, But Breach Notification Provisions Lag Behind). Though most of the amendments made by the DPA are currently in force, the amendments creating a mandatory data breach reporting scheme will not come into force until regulations setting out prescribed requirements have been enacted. The purpose of the current consultation document is to gather input from interested stakeholders to inform and support the preparation of draft regulations. A second consultation process will be held after draft regulations have been published, which means that final regulations are unlikely before late fall of 2016.


Once these amendments come into force, organizations that experience a "breach of security safeguards" will be required to:

  • Determine if the breach poses a "real risk of significant harm" to any individual whose personal information was involved in the breach
  • Notify individuals as soon as feasible of any breach that poses a "real risk of significant harm"
  • Report any data breach that poses a "real risk of significant harm" to the Privacy Commissioner, as soon as feasible
  • Where appropriate, notify any third party that the organization experiencing the breach believes is in a position to mitigate the risk of harm 
  • Maintain a record of the data breach and make these records available to the Privacy Commissioner upon request

A "breach of security safeguards" is defined as "the loss of, unauthorized access to or unauthorized disclosure of personal information resulting from a breach of an organization's security safeguards that are referred to in Clause 4.7 of Schedule 1 or from a failure to establish those safeguards." Clause 4.7 of Schedule 1 of PIPEDA requires organizations to protect personal information using security safeguards that are appropriate having regard to the sensitivity of the information.


For each provision where regulations setting out prescribed requirements are contemplated, the consultation document outlines various factors to consider in determining the scope of those regulations, including the objective of the provision and how similar objectives are addressed in data breach legislation in other jurisdictions such as Alberta, the United States and Europe and by the voluntary data breach guidelines published by the Office of the Privacy Commissioner of Canada (OPC). The document then poses a number of specific questions for stakeholders to consider. The Ministry has expressed particular interest in receiving input from: specific industry sectors; multi-national organizations; organizations in multiple jurisdictions; and small- to medium-sized organizations.

Determining Real Risk of Significant Harm

The amendments will create a risk-based framework, requiring that a data breach be reported where it creates a "real risk of significant" harm to affected individuals. In making this assessment, organizations are required to consider the sensitivity of the personal information involved and the probability that the information has or will be misused. The consultation document asks stakeholders to consider whether any additional factors should be set out in the regulations as mandatory considerations in the risk-assessment. It also asks whether the regulations should specify that the risk to individuals can be presumed to be low if appropriate encryption has been used.

Report to the Commissioner

The Ministry recognizes that reports to the OPC must contain sufficient information to fulfil the objectives of monitoring organizations' compliance with their breach reporting obligations and for standardized tracking of serious data breaches in Canada, but should also not pose an unreasonable burden on organizations. With this in mind, stakeholders are asked to consider what information should be mandatory in the report to the OPC, whether organizations should be required to include a risk assessment in the report, whether reporting should be done in multiple stages (preliminary report followed by a final report once all factors are known) and whether the format of the report, and means for reporting, should be mandated (e.g. written or electronic format; reporting by email, mail or via a secure electronic portal). The consultation document does not ask whether legislated privilege or confidentiality protections should apply to such reports, which will be a significant concern in circumstances in which class action litigation is likely, particularly if the regulations require that the report contain an assessment of the type of harm that may result from a breach and the likelihood of that harm occurring.

Notification to Individuals

The amendments require organizations to include sufficient information in the notice to affected individuals to enable the individuals to understand the risks posed by the breach and what steps he or she can take to reduce those risks or mitigate harm. The consultation document asks whether this is sufficient or whether the regulations should identify specific information that must be included in the notice. It also asks what format the notice should take (e.g. email, first class mail, etc.), and in what circumstances indirect notification (e.g. notice in a publication rather than direct contact with affected individuals) should be permitted. Despite inviting comments from multi-national organizations and other organizations working in multiple jurisdictions, the consultation document does not specifically identify as a concern the risk of conflicting requirements in different jurisdictions, or notices becoming confusing or difficult to read as a result of an organization complying with every requirement in every jurisdiction to which it is subject.

Notification to Other Organizations 

The consultation document asks stakeholders to consider whether the regulations should set out specific circumstances in which a third party organization would always be required to be notified of a data breach.

Record Keeping

Even where an organization has determined that a breach of security safeguards does not pose a real risk of significant harm, organizations that become aware of a breach are required to maintain a record of it. Stakeholders are asked to consider whether and what specific data fields should be mandatory for such records and whether the regulations should specify how long those records should be required to be maintained, who within the organization is responsible for maintaining them, and whether the duty should apply to "assumed breaches" when the organization has no actual knowledge of a breach.

Stakeholders are also asked to comment on any other issues that should be considered when drafting the regulations. 

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
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