Canada: The OPC Publishes Its Report On Consent

In May 2016, the Office of the Privacy Commissioner of Canada ("OPC") published a discussion paper and launched a consultation on consent under the Personal Information Protection and Electronic Documents Act ("PIPEDA") with the objective of identifying potential enhancements to the consent model and better defining the roles and responsibilities of the actors who could implement such improvements. On September 21, 2017, as part of its 2016-2017 annual report, the OPC published its "Report on Consent" in result of this consultation.

In this report, the OPC recognizes that consent is a foundational element of PIPEDA, but notes that obtaining meaningful consent has become increasingly challenging in the digital environment and can sometimes be impracticable or very challenging in the case of big data initiatives or Internet of Things devices. The OPC also cites a survey revealing that the vast majority of Canadians are worried that they are losing control of their personal information and highlighted the importance of Canadians having the trust required for the digital economy to flourish.

The report focuses on three themes: making consent more meaningful, alternatives to consent and governance/enforcement.

Making consent more meaningful

Privacy notices

The report notes that privacy policies were heavily criticized during the consultations for obfuscating data practices by being too lengthy and using complex and ambiguous language. Most participants in focus groups admitted to not reading them. According to the OPC, the choice of companies to use privacy policies as the primary vehicle for obtaining informed consent was a questionable choice from the beginning, and this problem increased as companies failed to adapt their policies to a digital environment.

The OPC believes that privacy policies have been ineffective from a consent perspective, but nevertheless serve a range of important legal purposes. For instance, regulators need to refer to them in order to hold organizations accountable for their personal information management practices. Accordingly, the OPC issued seven guiding principles for organizations to follow in developing privacy policies. The following ideas are particularly noteworthy:

  • Certain elements warrant greater emphasis in order to obtain meaningful consent:
    • what personal information is being collected;
    • who it is being shared with, including an enumeration of third parties;
    • for what purposes is information collected, used, or shared, including an explanation of purposes that are not integral to the service; and
    • what is the risk of harm to the individual, if any;
  • For collections, uses or disclosures that are not integral to the product or service they are seeking, individuals must be provided with easy "yes" or 'no' options;
  • Innovative consent processes that can be implemented just in time and are specific to the context and appropriate to the type of interface used should be adopted;
  • Consent processes should be user-friendly and the information provided understandable, and organizations should be able to demonstrate that they have tested these processes;
  • Informed consent is an ongoing process that changes as circumstances change and organizations should not rely on a static moment in time but rather treat consent as a dynamic and interactive process.

Forms of consent

The OPC believes that the form of consent (express vs. implied) should depend on:

  • the sensitivity of the information;
  • the reasonable expectations of individuals. Individuals would be less likely to give implied consent with respect to personal information not integrally linked to the service. Organizations should be very transparent about when personal information is integral to the service and when it is not;
  • the risk of harm of a data processing activity. The OPC intends on asking Parliament to make risk of harm an explicit factor when determining the appropriate form of consent.

Children and youth

The OPC takes the position that, in all but exceptional cases, consent for the collection, use and disclosure of personal information of children under the age of 13, must be obtained from their parents or guardians. As for youth aged 13 to 18, their consent can only be considered meaningful if organizations have taken into account their level of maturity in developing their consent processes and adapted them accordingly. Organizations should therefore be cautious before considering that they have obtained consent from an individual aged 13 to 18, as this criterion appears to be difficult to apply.

No-go zones even with consent

Under subsection 5(3) of PIPEDA, an organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances. This cannot be overridden by consent. The OPC intends on publishing guidance on what is not considered an appropriate use under this subsection. It gives examples of what it considers inappropriate:

  • collection, use or disclosure that is otherwise unlawful;
  • profiling or categorization that leads to unfair, unethical or discriminatory treatment;
  • publishing personal information with the intended purpose of charging individuals to pay for its removal;
  • situations that are known or likely to cause significant harm to the individual.

Alternatives to consent


The OPC notes that de-identification may seem like a promising measure for enhancing privacy protection, but acknowledges that re-identification is a real risk because of the availability of data sets that can be used for re-identification and because of the lack of rigour in de-identification methods. It intends on issuing guidance on de-identification aiming at helping organization assess and reduce risk of re-identification to a sufficiently low level where it may reasonably be used without consent.

The report also discusses the idea of a spectrum of identifiability, noting that the EU General Data Protection Regulation ("GDPR") recognizes pseudonymization as a safeguard and allows organizations greater flexibility when processing pseudonymized information. The OPC encourages Parliament to examine the concept of pseudonymized information, which may be exempt from consent requirements but still subject to all other PIPEDA protections.

Publicly available information

While noting that several stakeholders have suggested changes to PIPEDA's Regulations Specifying Publicly Available Personal Information, the OPC believes that the matter merits further attention and deliberation by Parliament because the issue of deciding how to protect the privacy of people whose information is publicly available is extremely complex and raises fundamental questions of freedom of expression and the right to access information in the public interest. 

New consent exceptions

The OPC acknowledges that there are situations where consent may be impracticable and suggests that Parliament consider the circumstances where exceptions to the consent requirement might be warranted from a broader societal perspective. Such situations include:

  • search engines indexing web sites and presenting search results to Internet users where appropriate;
  • geolocation mapping services that society has become increasingly reliant upon;
  • certain data processes, such as big data analytics, Internet of Things, artificial intelligence or robotics applications where commercial and societal interests align.

An organization that wishes to benefit from such consent exception would be required to demonstrate that obtaining consent has been explored and that it is impracticable to obtain such consent. It would also have to comply with prior conditions, which may include an organization having to demonstrate, on request, that:

  • it is necessary to use personal information;
  • it is impracticable to obtain consent;
  • pseudonymized data will be used to the extent possible;
  • societal benefits clearly outweigh any privacy incursions;
  • a Privacy Impact Assessment was conducted in advance;
  • the organization has notified the OPC in advance;
  • the organization has issued a public notice describing its practices; and
  • individuals retain the right to object.


In a 2013 report, the OPC argued for stronger enforcement powers. It now believes that this need has become greater and that Canadians' privacy rights must be adequately protected through privacy regulators who, like those in the U.S., the EU and elsewhere, have enforcement powers that are proportional to the increasing risks that new disruptive technologies pose for privacy.

Fines and monetary settlements

The OPC notes that other Canadian regulators have the power to impose administrative monetary penalties (under the Competition Act, for instance). It also mentions that fines (like those provided in the GDPR) or monetary settlements (such as those obtained by the U.S. Federal Trade Commission) are becoming the norm internationally. According to the OPC, regulatory and enforcement powers gaps may come under scrutiny when Canada's adequacy status is reviewed by the EU under the GDPR. In terms of factors for imposing a penalty, the OPC believes that they should be carefully examined, with the aim to enhance compliance, rather than to punish. Due diligence, i.e. evidence that an organization has taken all reasonable steps to avoid the violation, would be a complete defence.

Authority to verify compliance on demand

The OPC believes that the ombudsman model as a complaint-driven system has some flaws. For instance, individuals are unlikely to file a complaint about something they are unaware of and it becomes more complicated to understand how organizations handle personal information in the age of big data and Internet of Things. A proactive regulatory model would allow the OPC to verify compliance on demand and require organizations to demonstrate accountability, without evidence that a violation has occurred (which is currently required under PIPEDA).

Regardless of whether it is granted a broader legislative authority to investigate, the OPC intends on making more frequent and strategic use of its existing power to conduct Commissioner-initiated investigations focusing on recurring or sector-specific problems, or other privacy issues related to opaque business models and uses of personal information.

Private right of action

The OPC suggests that Parliament consider creating a private right of action for PIPEDA violations as an alternative to the current complaint model, instead of relying on the lengthy development period of privacy tort law.

Next Steps

The Privacy Commissioner of Canada, Daniel Therrien, has also recommended legislative amendments to PIPEDA to provide for order-making powers and the ability to impose administrative monetary penalties in order to address his concern that Canadians do not feel protected by a law that has no teeth and by businesses held to no more than non-binding recommendations (view the news release here).

That being said, Therrien mentioned that the OPC will not wait for legislative changes but will begin to act immediately to improve privacy protections for Canadians by implementing certain steps. These steps include making a shift towards a proactive enforcement and compliance model, rather than a complaints-based ombudsman model of privacy protection which may be useful when the OPC identifies privacy problems related to complex new technologies. These steps also include specifying key elements that must be highlighted in privacy notices and explained in a user-friendly way to improve online consent, as well as developing new guidance which would specify areas where collection, use and disclosure of personal information is prohibited, as in situations that are known or likely to cause significant harm to the individual.

About BLG

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.

Similar Articles
Relevancy Powered by MondaqAI
Miller Thomson LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Miller Thomson LLP
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