Digital Charter Implementation Act, 2020: The long-awaited overhaul of private sector privacy legislation in Canada
On November 17, 2020, the Digital Charter Implementation Act, 2020 (“Act”) was introduced as Bill C-11. This is the first major update to the federal private sector privacy regime in Canada since the implementation of the Personal Information Protection and Electronic Documents Act (“PIPEDA”) in 2000. Bill C-11 seeks to enact two new pieces of legislation: the Consumer Privacy Protection Act (“CPPA”) and the Personal Information and Data Protection Tribunal Act (“PIDPTA”). It also repeals Part 1 of PIPEDA, which will be renamed the Electronic Documents Act.
Consumer Privacy Protection Act
The CPPA will replace Part 1 of PIPEDA, and govern the protection of personal information that organizations collect, use or disclose in the course of commercial activities. Highlights include:
- Enhanced accountability: Private-sector organizations are required to implement a privacy management program which outlines policies, practices, and procedures to ensure compliance with CPPA, and provide access to the documents created under the program upon request by the Federal Privacy Commissioner.
- Codification of consent requirements: The CPPA codifies and updates the consent requirements for the collection, use and disclosure of personal information. For instance, the CPPA sets out four components of valid consent, namely a requirement to inform an individual in plain language: the purposes for the collection, use and disclosure of the personal information (which have recording requirements); (b) the ways in which the information is to be collected, used or disclosed; (c) any reasonably foreseeable consequences of the collection, use or disclosure; (d) the specific type of information to be collected, used or disclosed; and, (e) the names or types of third parties to which the information may be disclosed.
- Modernized information and access provisions: Upon request, organizations must inform individuals of whether it has personal information about them, how it uses the information, whether it has disclosed the information and to whom, and provide the individual access to the information. Organizations that use automated decision systems to make predictions, recommendations or decisions about an individual are also required, upon request, to explain how the system made the prediction, recommendation or decision about an individual and how the individuals’ personal information was used to do so. There are statutorily imposed deadlines for responding.
- Updated prospective business transaction provisions: Organizations party to a prospective business transaction for which they will use and disclose personal information without knowledge and consent, in addition to the current PIPEDA requirements, will also be required to de-identify the personal information before it is used or disclosed and keep it de-identified until the transaction is completed. The organizations are also statutorily obligated to comply with the agreement currently mandated under PIPEDA.
- Real consequences for non-compliance: The Federal Privacy Commissioner is empowered to conduct inquiries, order organizations to comply with the Act, and for certain contraventions may recommend to the new Personal Information and Data Protection Tribunal that it impose a financial penalty. The Tribunal can order a penalty based on the Commissioner’s decision or its own decision on appeal. The maximum penalty is the higher of $10,000,000 or 3% of the organization’s gross global revenue in its previous financial year.
- A private right of action: The CPPA also creates an independent, private right of action for individuals who suffer damage due to contraventions of CPPA where there have been adverse findings against the organization by the Commissioner or the Tribunal, or there has been a conviction for an offence. As a result, breach of the CPPA may result not only in an administrative penalty, but also a civil action, upping the stakes for organizations who fail to comply.
Personal Information and Data Protection Tribunal Act
The PIDPTA should be read in concert with the CPPA. In short, the PIDPTA:
- Creates the Tribunal: The PIDPTA creates the Personal Information and Data Protection Tribunal to hear appeals of decisions made by the Federal Privacy Commissioner and to impose penalties for certain contraventions of the CPPA.
- Rules and procedures: The Tribunal is empowered, with approval from the Governor in Council, to make rules that are not inconsistent with the Act or the CPPA to govern its practice and procedure. Note that a civil standard of proof is statutorily imposed, but that the Tribunal is “not bound by any legal or technical rules of evidence in conducting a hearing”, and is required to deal with all matters before it “as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit”.
- Method of review: The Tribunal must provide written decisions with reasons, which must be made available to the public. All decisions of the Tribunal are to be final and binding, subject only to judicial review under the Federal Courts Act.
Stewart McKelvey will continue to monitor the progress of Bill C-11, and to keep organizations informed of their new obligations. In the meantime, please contact our Privacy group should you require further information or assistance.
This article is provided for general information only. If you have any questions about the above, please contact a member of our Privacy group.
Click here to subscribe to Stewart McKelvey Thought Leadership articles and updates.
Archive
Jennifer Taylor Introduction Appeal courts in Ontario1 and Nova Scotia2 have now issued decisions about Trinity Western University’s proposed law school (“TWU”) in British Columbia, and at first glance they couldn’t be more different. The Court of Appeal for…
Read MoreJoe Thorne1 and Giles Ayers2 Limitation periods serve a critical function in the civil justice system. They promote the timely resolution of litigation on the basis of reliable evidence, and permit litigants to assess their legal exposure…
Read MoreOn July 14, 2016 the Supreme Court of Canada issued a significant decision affecting federally regulated employers across Canada. In Wilson v. Atomic Energy of Canada Limited the Court held that the purpose of the unjust dismissal…
Read MoreOn April 1, 2016 New Brunswick’s Mortgage Brokers Act came into force, requiring businesses acting as mortgage brokerages or as mortgage administrators in New Brunswick to be licensed. A mortgage brokerage is a business that on behalf…
Read MoreIn May 2016, the Federal Court of Canada confirmed that copyright does not protect facts, even where a book’s author is clearly inspired by the content of a film (Maltz v. Witterick, 2016 FC 524 (CanLII)).…
Read MoreBy Jennifer Taylor “…firms of notaries or lawyers…must not be turned into archives for the tax authorities”1 So says the Supreme Court of Canada in one of two highly anticipated decisions on solicitor-client privilege, offering lawyers…
Read MoreJoe Thorne1 and Clara Linegar2 As joint owners of a business, what do you do when the business relationship falls apart? And what if one owner undermines the business in the process? In Smith v Hillier,3 Justice Paquette…
Read MoreThe Supreme Court of Canada has dismissed the appeals in Bruce Brine v. Industrial Alliance Insurance and Financial Services Inc.1 (with costs) and Luciano Branco, et al. v. Zurich Life Insurance Company Limited, et al.(without costs). Both of…
Read MoreOn May 4, 2016, the Nova Scotia Pooled Registered Pension Plans Act (“PRPP Act”) was proclaimed in force, and finalized Pooled Registered Pension Plan Regulations were released. While there were no major changes from the previously released draft regulations, the proposed rules…
Read MoreBy Level Chan and Dante Manna Pooled Registered Pension Plans (“PRPPs”) are closer to becoming a reality for Nova Scotian employers. PRPPs were established by the Federal government in an effort to address the lack of retirement savings…
Read More