Canada: New Mandatory Data Breach Reporting Rules – Tips To Protect Your Organization

What was the first thing that went through your mind the last time you lost your cell phone? How about that time when your laptop was stolen from your car? Your first thoughts were probably focused on how you could track it down, if you had backed up the proposal that was due later that week or the $800 you were going to have to shell out to replace that month-old phone.

In the midst of all those thoughts, you probably didn't consider reporting the incident to the federal privacy commissioner. Well, under new federal laws taking effect on November 1, 2018, businesses, societies, charities and other private sector organizations in BC may be required to report these mishaps to the Office of the Privacy Commissioner of Canada ("OPC") where the incident involves the loss or disclosure of personal information.

Why should it matter to you?

Mandatory data breach reporting for private sector organizations collecting, using or disclosing personal information is about to become the new normal. This has been a requirement for public sector organizations for some time. Alberta imposed a similar reporting scheme on the private sector in 2010 and the European Union followed suit earlier this year with its General Data Protection Regulation.

Under the new federal laws coming into effect on November 1, 2018, organizations must implement new procedures to identify and report data breaches involving personal information to both the OPC and the affected individual, where that breach creates a real risk of significant harm to an individual. Organizations will also be required to keep records of data breaches involving personal information, copies of which must be provided to the OPC upon request.

When should I report?

Currently, Canadian privacy laws require organizations to implement security safeguards to protect personal information they hold against loss, theft or unauthorized access, disclosure, copying, use or modification. Most data breaches described in the media involve reports of sophisticated hacking syndicates influencing national elections or infiltrating commercial data centres to steal and sell customer names and credit card details on the dark web. Unfortunately, the reality is often much more mundane and hits closer to home. Typically, a data breach is a lost or misplaced USB stick or an employee sending an email to an unintended recipient.

Under the new data breach reporting rules, organizations must report a data breach if it is reasonable to believe that the breach creates a real risk of significant harm to an individual.

What does this mean in practice?

Whether or not the incident causes significant harm requires the organization to consider a variety of factors, including the potential for bodily harm, humiliation, damage to reputation, financial harm and identity theft. In determining whether there is a real risk of that harm materializing, your organization will need to consider the sensitivity of the lost or disclosed information and the possibility that it has been, is being or will be misused.

The OPC recently published draft guidelines that provide guidance on how organizations can assess whether a breach gives rise to a real risk of significant harm. In particular, when assessing the probability of misuse, the OPC recommends that organizations ask themselves a number of questions, including the amount of personal information exposed, whether the information has been recovered and whether the person who obtained the personal information is likely to cause harm with it.

In addition to the OPC's guidelines, past experiences in Alberta provide some helpful guidance on when a breach of security safeguards should be reported, demonstrating a tendency toward reporting where:

  • the breach involved theft or some deliberate or malicious act, such as actual fraud;
  • the breach was undiscovered or ongoing for a period of months or years; or
  • the data or device was unencrypted, not password protected or never recovered.

What are the consequences if you don't report?

Depending on the nature of the breach and your organization's response or lack of response, the OPC can impose a fine of up to $100,000. However, as a practical matter, the fine itself may pale in comparison to the impact of a data breach on your brand's reputation and customer loyalty.

Proactive reporting will also provide your organization with the opportunity to shape the narrative relating to the breach, rather than your customers learning about their lost credit card details through their Facebook feed.

What can I do to protect my organization?

There are a number of measures your organization can undertake now to be ready for the new mandatory data breach reporting rules, including the following:

Review your existing security safeguards

As most organizations collect, use or disclose personal information on a daily basis, now would be a good time to take stock of where that information is stored, who has access to it and what measures your organization currently has in place to protect it.

For example, if you keep client or customer documentation in filing cabinets, are they fitted with locks? If so, are they routinely secured when not in use? Is the data on your organization's computers, USB sticks and other devices encrypted and password protected? How strong are your organizational password policies and do you require two factor authentication? If your data is in the cloud, is your cloud provider required to notify you of security breaches and, if so, will the cloud provider notify you directly or are notices posted on their customer portal?

Updates to security safeguards and practices now may help prevent future breaches and mitigate the organizational risks associated with the data breach notification rules.

Develop and implement a data breach management policy

Given the diversity of events that can lead to data breaches, it is more a matter of 'when' rather than 'if' your organization will be impacted by a data breach. A key component in your privacy compliance arsenal is a comprehensive data breach management policy, together with an effective data breach response plan. The policy and plan should provide your organization with a framework and action plan to address data breaches, including:

  • a clear statement of what constitutes a data breach to assist personnel to identify incidents;
  • the roles and responsibilities of key personnel when a breach is identified, including when it is appropriate to engage external advisors to investigate the source of the breach and protect the confidentiality of any resulting reports;
  • a strategy to contain, assess, manage and remediate the breach;
  • comprehensive documentation protocols to record the details of each data breach, which should align with the information to be notified to the OPC including the circumstances of the breach, when it occurred, the personal information affected and the steps your organization will take to minimize the risks; and
  • an effective program for managing post-breach communications to both the OPC and consumers generally.

Promote a culture of compliance

At an organizational level, developing a culture of privacy compliance is a sound investment from both a risk and reputational perspective. Personnel who are familiar with an organization's privacy policies and aware of the importance of safeguarding personal information are more likely to identify both potential and actual breaches and to notify the appropriate personnel to take action.

On that basis, all personnel should be provided with induction training on the proper handling personal information which should be supported by on-going refresher training. All of this should be supported by effective technology and a clear alignment between the organization's goals and privacy compliance.

Is BC different?

Does data breach notification apply in BC? The answer is yes and no. Yes, breach notification will apply to all personal information that is caught by the federal privacy law, the Personal Information Protection and Electronic Documents Act ("PIPEDA"), but does not apply to personal information caught only by the British Columbian privacy law, the Personal Information Protection Act ("PIPA"). The federal PIPEDA law applies to organizations which are federally regulated industries (e.g. banks, airlines and telecos), organizations which move personal information across provincial or international borders or in provinces who have failed to adopt similar legislation to PIPEDA. Because BC's PIPA is similar to the federal PIPEDA, if personal information is collected, used or disclosed within BC only, it will not be caught by the federal PIPEDA and the breach notification rules and obligations under PIPEDA.

However, it is important to be aware that BC will likely adopt data breach notification rules under PIPA similar to those found in PIPEDA in the near future. Further, it is best practice to ensure that your organization is compliant with the federal law and ready for the likely changes in BC law, as these are the expectations in the marketplace.

Next Steps?

The new mandatory data breach notification rules are a significant change that alters the risk profile of dealing with personal information in the digital age. However, like any risk, it can be managed with appropriate level of foresight and preparation. With less than a month remaining before these new requirements come into effect, now is the time to ensure your organization is prepared to act on its next data breach.

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