Canada: The GDPR – Key Points For Canadian Businesses

Last Updated: August 9 2016
Article by Lyndsay A. Wasser

Co-authored by Bob Bell, Student-at-Law


In 1995 the European Union ("EU") adopted the Data Protection Directive (the "Directive") which regulates the processing of personal data within the EU. The Directive provides guidelines for the development of privacy law in Member States. Since the Directive is not itself a binding law on companies and individuals, each Member State was required to implement its own law. This has created a patchwork of privacy laws across the EU that adhere to the basic principles of the Directive.

On April 14, 2016, the European Parliament approved and adopted the General Data Protection Regulation (GDPR) to bring a single cohesive system of privacy regulation to the EU. The GDPR was published in the EU Official Journal on May 4, 2016 and will come into force on May 25, 2018. The EU intends for this single law to strengthen the protection of individual privacy rights and simplify business rules for companies operating in the EU market.

Territorial Reach

Currently, under the Directive, a Member State's laws apply to companies in three situations:

(1) The company is processing personal data on a site in the territory of the Member State;

(2) The company is established in a place where the Member State's national law applies; or

(3) The company processes data using equipment located in the territory of the Member State, unless it is only used for transit through the territory.

When the GDPR comes into force, it will apply to companies that have an establishment in the EU or that engage in data processing activities that relate to:

(1) Offering goods or services to EU residents; or

(2) Monitoring the behaviour of EU residents within the EU, which may include tracking internet activity for behavioural advertising purposes.

Therefore the GDPR has a wider reach than the Directive and has the potential to impact companies that do not have any operations in the EU. Below is an overview of some of the key differences between the Directive and the GDPR, as well as steps Canadian organizations can take now to begin preparing for the GDPR.


Under the Directive, consent has to be unambiguously given by the individual. It can be implied in limited circumstances, for instance if the data processing is necessary to perform a contract with the individual. Consent can also be inferred from the actions or inactions of the individual, which allows companies to rely upon "opt-out" consent provided that it is clear that the individual had to opt out. Finally, explicit consent is needed for sensitive personal data, unless the processing of that information is necessary for a specified purpose (e.g., for employment law related matters).

Under the GDPR there will be several changes to the EU's approach to consent:

(1) "Opt-out" consent does not appear to be permitted. Consent must be freely given, specific, informed, unambiguous, and given through some clear action;

(2) Explicit consent will be required for sensitive data and there must be an option for individuals to withdraw or refuse such consent;

(3) All individuals will have the right to object to direct marketing and profiling related to direct marketing, and they must be informed of this right;

(4) There will be a presumption against consent if there is a clear imbalance of power, which would tend to be the case between companies and consumers;

(5) Specific consent will be required for each new data processing operation, unless the subsequent operations are sufficiently similar to ones already consented to;

(6) Companies will only be allowed to offer services conditional on consent if the data processing is integral to providing the service;

(7) Any child under 16 will require parental consent, unless a Member State opts to reduce the age to 13; and

(8) Companies must make the right to withdraw consent as easy as giving consent, and must inform users of this right.


The Directive provides some limited restrictions on the collection and retention of personal data, including a requirement to implement certain security measures based on the nature of the data and the associated risks. The GDPR, however, incorporates the "privacy by design" principles that are recognized in Canada. The GDPR also contains additional accountability requirements, including but not limited to:

(1) Stricter data protection policies and procedures;

(2) Enhanced record keeping obligations;

(3) Requirements for data protection impact assessment for high risk activities; and

(4) Requirements for stronger security measures matching the risk of data breaches and potential harm to individuals.

Data Breach Notification

The EU does not currently impose a legal obligation on companies to inform individuals of a data breach. When the GDPR comes into force, companies will have to notify individuals without delay that there has been a breach of their personal data. Where possible this notification will need to be provided within 72 hours, unless the breach is unlikely to impact the rights and freedoms of individuals. The GDPR also includes a duty for data processing companies (the "Processors") to report breaches to the company that collected and controls the data they process (the "Controller").

Data Processors

The current EU law places most obligations for processing on the Controllers. Controllers are required to select a Processor that will implement sufficient protection and the data processing must be governed by a contract pursuant to which the Processor must only act on the instructions of the Controller and must agree to abide by the Member State's law where the Processor is established.

The GDPR alters the current scheme and will spread obligations more evenly between Controllers and Processors. Controllers still bear the primary burden for protection of personal data and must select a Processor that will implement sufficient protections. The Controller will also be obligated to carry out a "Privacy Impact Assessment" for high risk processing and must keep records of processing activities. However, Processors will now be subject to direct regulation, including the obligation to process data only as instructed by the Controller, use appropriate safeguards, return or delete data once processing is complete, and notify the Controller of any data breaches. Processors also cannot subcontract any obligations without the Controller's permission. The GDPR contains detailed requirements for contracts that govern the Controller-Processor relationship.

International Transfers

Currently, the Directive restricts transferring personal data to a country outside the EU unless the recipient jurisdiction offers "adequate" protection for such information, subject to certain exceptions at the Member State's discretion (e.g., Member States may allow a transfer to a country that does not ensure adequate protections if the Controller shows they have sufficient safeguards in place).

The GDPR contains stricter restrictions upon transferring personal data to countries that do not have adequate protections in place. However, transfers will still be permitted to those countries if the Controller has approved "binding corporate rules" or has entered into an agreement that contains the required "standard contractual clauses". The GDPR also includes two new allowable mechanisms for international transfers of personal data:

(1) Binding and enforceable codes of conduct; and

(2) Certification by a body that meets certain accreditation requirements and complies with certain responsibilities under the GDPR.

Data Protection Officers

Under the Directive, companies are not obligated to employ a data protection officer ("DPO"), although some Member States have such a requirement under their local laws. The changes under the GDPR will require companies to appoint a DPO in certain circumstances, including if the company's processing of personal data requires regular and systematic monitoring of data subjects on a large scale or the core activities of the company consist of processing special categories of data on a large scale.

DPOs are given certain rights under the GDPR including:

(1) A right to not be dismissed or penalized for performing their responsibilities;

(2) A right of access to data processing personnel and operations;

(3) A right to significant independence; and

(4) A right to have a direct reporting line to the highest level of management.

Right to be Forgotten

The right to be forgotten has developed through EU case law, however, it will be enshrined in legislation when the GDPR comes into force. Subject to certain conditions, Controllers will be obligated to erase personal data without undue delay in certain circumstances, for instance: if the data is no longer needed, if an individual objects to processing, or if the processing was unlawful. Controllers who have received a request to delete certain data must also take reasonable steps to inform other Controllers, who have had access to the data, of that individual's request.


Under the Directive there is no unified set of sanctions. Member States are responsible for their own suitable sanctions and must provide for a judicial remedy for a breach of privacy rights.

The GDPR contains significant sanctions for companies found to have violated legal rights and obligations related to data processing. There will be two tiers of possible sanctions:

(1) The upper tier, where serious infringements will attract a penalty of the greater of:

i. 20,000,000 Euros, or

ii. 4% of annual worldwide turnover of the corporate group; and

(2) The second tier, where lesser infringements will attract a penalty of the greater of:

i. 10,000,000 Euros, or

ii. 2% of annual worldwide turnover of the corporate group.

The GDPR will also allow public interest organizations to bring class actions for data breaches on behalf of individuals who have had their rights violated.

Steps to Consider

Many of the restrictions and requirements set out in the GDPR are consistent with requirements under the Personal Information Protection and Electronic Documents Act ("PIPEDA"), and therefore, Canadian organizations that already comply with PIPEDA or substantially similar provincial legislation may already have many appropriate privacy policies and practices in place.

However, given the seriousness of the potential sanctions under the GDPR, affected organizations would be well advised to begin taking steps now to consider and address the specific requirements of the GDPR where they differ from PIPEDA. For example, organizations may need to:

(1) Review consent forms for EU residents to determine if amendments are necessary to comply with the GDPR;

(2) Review contracts with Data Processors, as well as the organization's selection process for Data Processors, to ensure compliance with the specific GDPR requirements;

(3) Ensure that the Company's Chief Privacy Officer's ("CPO") qualifications, duties and placement within the organization are consistent with GDPR requirements (or hire/appoint a new DPO or CPO, with the required expertise, if necessary);

(4) Thoroughly review privacy and data protection policies and practices that apply to the handling of personal data of EU residents, to ensure compliance with the GDPR;

(5) Review the organization's privacy compliance infrastructure to determine if adjustments need to be made in light of the GDPR accountability requirements; and

(6) Consult with legal counsel to understand the organization's legal obligations and ensure that appropriate steps are taken to meet these obligations before the GDPR comes into force.

Organizations that begin taking steps now, to comply with the GDPR, will be better positioned to meet their legal obligations when the legislation comes into force, and thereby avoid potentially significant penalties.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2016

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.

Lyndsay A. Wasser
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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

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