Privacy Laws in Canada – A State of Flux

Privacy Laws in Canada – A State of Flux

Developments in Nova Scotia

We can now add Nova Scotia to the list of provinces looking to reform their privacy laws. Premier-designate Tim Houston recently stated he will be keeping the promise he made ahead of the provincial election that he would give Nova Scotia’s privacy commissioner order-making power should he and the Progressive Conservatives come into power. Former premier Stephen McNeil’s government routinely clashed with the privacy commissioner’s office. Nova Scotia is the only province where the information and privacy commissioner is not an independent officer of the legislature. And without order making powers, while the office regularly makes recommendations, the provincial government and other public bodies aren’t required to follow them.

Tricia Ralph, Nova Scotia’s commissioner, said last year only 37.5 per cent of her office’s recommendations were followed. Nova Scotia’s freedom of information and protection of privacy law hasn’t had a major update since 1993. Ralph’s office recently released its annual report, which draws attention to a backlog in appeal files, a significant increase in requests for information, the need for more resources and an overhaul of the existing law.

federal privacy law overhaul

Federally, Bill C-11 that would enact the Consumer Privacy Protection Act (CPPA) to replace PIPEDA, is stuck at second reading. Given the federal election, it remains to be seen whether the bill will move along through the legislative process or whether Canada will be heading back to the drawing board on efforts to strengthen the country’s privacy laws. As outlined in a previous blog post, the Federal Privacy Commissioner’s concerns about the proposed CPPA also need to be addressed. Meanwhile, the clock is ticking on the EU’s evaluation of the adequacy of Canada’s privacy statutory framework. PIPEDA’s limited application to commercial activities, lack of enforcement powers for the Federal Commissioner and the law’s room for ambiguity with respect to required information-handling practices thus remain real concerns. Organizations operating in Canada make critical decisions around data governance without clear rules in place.

It seems that almost every jurisdiction in Canada is calling for enhancements to their privacy legal frameworks. With a complex interplay of federal and provincial laws, it is hoped that privacy laws mature in a somewhat synchronous fashion.

We also have the courts that continue to introduce their own interpretations and perspectives. For example, in the recent case of Sherman Estate v. Donovan, the Supreme Court of Canada engaged in a delicate review of the principle of “open courts” and how privacy fits in. In doing so, the Court provides useful commentary on when privacy is a protectable “public interest”. Click here for a very useful analysis of the Sherman case by David Young.

As noted above, there are many forces at play in the privacy legal landscape in Canada. Join PRIVATECH’s Fazila Nurani, IAPP training partner, as we dive deep into Canadian privacy law October 27-29, 2021. Training and materials will be provided to prepare you to receive your Certified Information Privacy Professional designation. The package offers significant savings and includes one year of IAPP membership. Early bird pricing ends October 1st!

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