Human Resources Legislative Update - Legislative Developments in Human Resources Law

On September 29, 2011, the federal government introduced Bill C-12, Safeguarding Canadians' Personal Information Act, which, if passed, will amend the Personal Information Protection and Electronic Documents Act ("PIPEDA").  

Bill C-12 reintroduces Bill C-29 (previously reported here), which expired on the Order Paper when Parliament was proclaimed dissolved in March, 2011. 

Among other things, Bill C-12 would:

• specify the elements of valid consent for the collection, use or disclosure of personal information;
• permit the disclosure of personal information without the knowledge or consent of the individual for prescribed purposes;
• clarify the meaning of lawful authority for the purpose of disclosures to government institutions of personal information without the knowledge or consent of the individual;
• permit organizations, for certain purposes, to collect, use and disclose, without the knowledge or consent of the individual, personal information contained in witness statements related to insurance claims, or produced by individuals in the course of their employment, business or profession;
• permit federal works, undertakings and businesses to collect, use and disclose personal information without the knowledge or consent of the individual to establish, manage or terminate employment relationships;
• provide a framework for organizations to notify individuals proactively about disclosures of their personal information made in certain circumstances to government institutions; and
• require organizations to report material breaches of security safeguards to the Privacy Commissioner and to notify certain individuals and organizations of breaches that create a real risk of significant harm.

As we reported, Bill C-28 (formerly the Fighting Internet and Wireless Spam Act), received Royal Assent on December 15, 2010, and will come into force on a day to be fixed by order of the Governor in Council.

Bill C-28 was originally introduced with a Short Title, the Fighting Internet and Wireless Spam Act. At the Committee stage of the legislative process, there was disagreement as to whether this Short Title was appropriate, given that the Bill had been introduced in a previous session as Bill C-27, the Electronic Commerce Protection Act.

In view of this disagreement, the government indicated its intention at Third Reading to change C-28’s Short Title back to the Electronic Commerce Protection Act. However, it did not do so.

At present, there is no Short Title for C-28. The Act is therefore titled An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.

Going forward, we will refer to it simply as “C-28”.

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On December 8, 2010, Bill 122, the Broader Public Sector Accountability Act, 2010, received Royal Assent.

As previously reported, the Bill passed at Third Reading on December 2, 2010 after being amended by the Standing Committee on Social Policy under an accelerated schedule for consideration and debate.

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In accordance with the terms of a special time allocation motion that was passed on November 4, 2010, Bill 122, the Broader Public Sector Accountability Act, 2010, was reported to the House as amended by the Standing Committee on Social Policy and ordered for Third Reading on November 30, 2010.

The Committee amendments include:

• an express protection against the disclosure of information protected by solicitor-client privilege, litigation privilege or settlement privilege; and
• an express obligation for hospitals and local health integration networks to post compliance attestations publicly on their websites.

The Bill is expected to be debated at Third Reading on December 1, 2010, and to pass shortly thereafter.

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As previously reported, on May 25, 2010, the federal government introduced two Bills that if passed, would significantly amend PIPEDA: Bill C-29, the Safeguarding Canadians’ Personal Information Act and Bill C-28, the Fighting Internet and Wireless Spam Act.

In our FTR Now of June 9. 2010, we summarize the major changes to PIPEDA outlined in both Bills and explain why these changes make it time for Canadian organizations to pay special attention to privacy protection and data security.

On May 6, 2010, the Federal government introduced Bill C-22, the Protecting Children From Online Sexual Exploitation Act, legislation that would impose mandatory duty on "persons" (defined to include individuals, corporations, partnerships, unincorporated associations or organizations) providing an "internet service" (internet access, e-mail or internet content hosting) to report child pornography in specific cases. This includes where the person has "reasonable grounds to believe" their internet service is being used for this purpose. In such cases, the duty to notify authorities comes with an obligation to preserve the "all computer-related data" within 21 days. Fines and offences range from $1,000 to $100,000 for repeat offenders.

As Hicks Morley partner Dan Michaluk blogs on slaw.ca, if passed, this legislation will add to duties embodied in the Child Pornography Reporting Act, 2008, provincial legislation passed in December of 2008 (not yet in force), which imposes duties that apply to “persons” writ large—not only to internet service providers. Bill C-22 specifies that a person who has reported information in compliance with an obligation to report child pornography under the laws of a province will be deemed to have reported in compliance with the provisions of Bill C-22.