Canada: Privacy A Primary Concern In 2017

Sophisticated cybersecurity threats, high-profile data incidents, and an explosion in the volume of data analytics initiatives have resulted in privacy issues being top of mind for organizations across all sectors. Moreover, in 2017, there were several key legal and regulatory developments in the Canadian privacy and data arena, most notably relating to statutory security breach notification regimes, Canada's Anti-Spam Legislation (CASL), and data governance.

Security breach notification

The Personal Information Protection and Electronic Documents Act (or PIPEDA) – Canada's federal private sector privacy law – has a new security incident reporting and notification regime, which will come into force after regulations are finalized.

The new regime features a unique, three-pronged notification requirement. When an organization suffers a breach of security safeguards that gives rise to a "real risk of significant harm" in the circumstances, the organization must (i) report the incident to the Office of the Privacy Commissioner of Canada (the OPC); (ii) notify affected individuals; and (iii) notify any other third parties that are in a position to mitigate the risk of harm to affected individuals.

Critically, PIPEDA's new security breach notification regime also imposes a record-keeping requirement, under which organizations must maintain a record of all of their data breaches. Organizations are obligated under the statute to make these records available to the OPC upon request.

Draft security breach regulations were released this past September. It is expected that they will be finalized in 2018 and come into force thereafter, following a brief transition period.

We expect this notification regime to have a significant effect on the Canadian data arena. Based on client experience after U.S. states implemented their security breach notification regimes several years ago, after the Personal Information Protection Act (Alberta) was amended to include an incident reporting rule, and after notification rules were introduced in various provincial health privacy statutes (including enhanced rules in Ontario's health privacy legislation that came into force this year), we are expecting PIPEDA's new reporting and notification regime to have the following consequences:

  • More transparency about and reporting of data security incidents within organizations, and more general awareness about the increasing volume, breadth, and sophistication of security threats.
  • More notifications sent to affected individuals and other organizations about security incidents.
  • More media coverage, or at least a spike in media reports, and heightened public awareness about information security safeguarding practices (or a perceived lack thereof).
  • More investigations, posted decisions, and regulatory queries by privacy regulatory authorities, leading to a continuing increase in the sophistication of privacy regulatory authorities, which will, in turn, raise regulatory expectations.
  • Increased class action litigation risk.

  • More concern about and attention to the enhanced legal and reputational risks at the senior management and board level.
  • More proactive efforts by organizations to address personal information security concerns, initially focusing, in particular, on
    • developing and/or enhancing and ensuring the appropriate implementation of security incident readiness plans and protocols; and
    • intensified scrutiny of third-party vendors who have custody of the data of organizations, including enhanced vendor management practices, such as increased pre-contractual due diligence, more robust contractual obligations on vendors to safeguard data, more attention on appropriate risk allocation, and a focus on post-contractual compliance monitoring.
  • And, overall, increased costs to organizations due to all of these factors.

Canada's Anti-Spam Legislation

CASL is perhaps the most stringent anti-spam legislation in the world. The legislation imposes strict and prescriptive consent, notice, and other requirements relating to the sending of commercial electronic messages and the installation of computer programs.

Moving into 2018, we are expecting that 'demonstrable accountability' will remain a central focus of Canadian privacy regulatory authorities.

To date, the Canadian Radio-television and Telecommunications Commission (CRTC) – the primary body responsible for enforcing CASL – has received over 1 million complaints involving alleged violations of CASL. The penalties for non-compliance are potentially severe: organizations can be subject to administrative penalties of up to $10 million and a private right of action for damages of up to $200 per commercial email (or other type of electronic message) sent in contravention of the legislation, up to a maximum of $1 million for each day the contravention occurred.

The private right of action was originally scheduled to come into force on July 1, 2017. However, in a significant development in June of 2017, the Canadian federal government announced that it was suspending the coming into force of these provisions, noting that a parliamentary committee would be asked to review CASL.

The House of Commons Standing Committee on Industry, Science and Technology commenced the parliamentary review this past September and proceeded rapidly with its work. By early November, the Committee had heard from dozens of witnesses and received dozens of written briefs, the vast majority of which advocated for significant amendments to CASL. The federal government's response to the report of this parliamentary committee is expected in 2018.

In the meantime, companies still face potential CRTC enforcement for violations of CASL. The CRTC concluded several investigations in 2017 and has multiple other investigations in progress.

The data governance focus

Data is now regarded as a "business critical" asset of many organizations, and significant corporate resources in analytics are being dedicated to leverage the benefits of the vast (and rapidly growing) amount of information in their custody and control.

Companies in all sectors are coming to grips with the nuanced privacy, legal, ethical, and reputational risks arising in the course of their analytics (i.e., "big data" initiatives). In a major trend aimed at identifying and mitigating these risks, more organizations have been developing or enhancing robust data governance frameworks, which incorporate privacy programs, information security governance and enterprise risk processes.

In 2017, Canadian privacy regulatory authorities also turned their attention more to organizations' privacy programs, data governance and "demonstrable accountability." In regulatory decisions and a number of public statements, privacy regulatory authorities more pointedly emphasized the need for organizations to demonstrate the effectiveness of the policies, practices, and procedures governing their personal information practices.

Moving into 2018, we are expecting that "demonstrable accountability" will remain a central focus of Canadian privacy regulatory authorities. Canadian organizations should ensure that they are in a position to demonstrate that they have up-to-date and appropriately robust data governance frameworks in place.

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.

In association with
Related Topics
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