Vol. 138, No. 22 — November 3, 2004

Registration
SOR/2004-220 12 October, 2004

PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT

P.C. 2004-1164 12 October, 2004

Whereas the Governor in Council is satisfied that the Personal Information Protection Act, S.B.C. 2003, c. 63, of the Province of British Columbia, which is substantially similar to Part 1 of the Personal Information Protection and Electronic Documents Act (see footnote a), applies to the organizations described in the annexed Order;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to paragraph 26(2)(b) of the Personal Information Protection and Electronic Documents Act (see footnote b), hereby makes the annexed Organizations in the Province of British Columbia Exemption Order.

ORGANIZATIONS IN THE PROVINCE OF BRITISH COLUMBIA EXEMPTION ORDER

EXEMPTION

1. An organization, other than a federal work, undertaking or business, to which the Personal Information Protection Act, S.B.C. 2003, c. 63, of the Province of British Columbia, applies is exempt from the application of Part 1 of the Personal Information Protection and Electronic Documents Act, in respect of the collection, use and disclosure of personal information that occurs within the Province of British Columbia.

COMING INTO FORCE

2. This Order comes into force on the day on which it is registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Order.)

Description

Part 1 of the Personal Information Protection and Electronic Documents Act (PIPEDA) establishes rules to govern the collection, use and disclosure of personal information by organizations in the course of commercial activity. Part 1 of the Act was implemented in two stages. On January 1, 2001, the Act applied to the collection, use or disclosure of personal information in connection with the operation of federal works, undertakings or businesses and to the disclosure of personal information for consideration outside a province. On January 1, 2004, the Act's reach was extended to all collections, uses or disclosures of personal information in the course of commercial activity, either within, or outside a province. Pursuant to paragraph 26(2)(b) of the Act, organizations or activities subject to provincial or territorial laws that have been deemed substantially similar by Governor in Council, may, by Order, be exempt from the PIPEDA in respect of the collection, use or disclosure of personal information within the province/territory.

Under the trade and commerce power conferred on Parliament by subsection 91(2) of the Constitution Act, 1867, PIPEDA establishes a set of economy-wide principles and rules for the protection of personal information. The Act helps to build trust and confidence in the Canadian marketplace, while encouraging provinces and territories to develop their own privacy laws in a manner that addresses their particular needs and circumstances. To this end, the Government of Canada included provisions in the PIPEDA to exempt from the federal Act organizations or activities subject to provincial or territorial laws that are deemed to be substantially similar.

On August 3, 2002, Industry Canada published the policy and criteria used to determine whether provincial or territorial legislation would be considered as substantially similar. The PIPEDA provides a standard around which provinces can legislate. Under the policy, laws that are substantially similar: provide privacy protection that is consistent with and equivalent to that in the federal Act; incorporate the ten principles in the CSA Model Code for the Protection of Personal Information, CAN/CSA-Q830-96, found in Schedule 1 of the PIPEDA; provide for an independent and effective oversight and redress mechanism with powers to investigate; and restrict the collection, use and disclosure of personal information to purposes that are appropriate or legitimate. In recognizing such laws as substantially similar, PIPEDA provides a common standard for privacy protection across both federal and provincial domains.

The British Columbia Personal Information Protection Act, which came into force on January 1, 2004, is substantially similar to the PIPEDA. The purpose of this Order is thus to exempt from the PIPEDA organizations that are subject to this legislation, for the collection, use or disclosure of personal information that occurs within the province of British Columbia. The PIPEDA will continue to apply to the collection, use or disclosure of personal information in connection with the operations of a federal work, undertaking or business (e.g., banks, airlines, telecommunications companies) in the province of British Columbia as well as to the collection, use or disclosure of personal information outside the province.

Alternatives

The legislative framework in Part 1 of the Act requires that the designation of provincial or territorial laws as substantially similar to the Act be done through Order in Council. There are no alternatives to exempt from the federal Act organizations and activities subject to substantially similar provincial or territorial laws.

Benefits and Costs

Benefits

The alignment of federal and provincial/territorial legislative regimes for the protection of privacy in the private sector makes privacy laws easier for individuals to understand and simpler for businesses to implement. Greater harmonization creates a consistent and seamless set of rules with regard to the protection of personal information, covering all businesses and organizations throughout the marketplace.

The PIPEDA's application to federal works, undertakings and businesses, and to cross-border flows of information, complements and enhances the privacy regimes of provinces where substantially similar laws are in place, thus making comprehensive privacy protection available to all Canadians.

Costs

The Order will have no adverse cost impact on the operations of organizations in British Columbia. Organizations subject to privacy legislation are expected to comply with a national standard set in the CSA Model Code for the Protection of Personal Information, CAN/CSA-Q830-96 that is embedded in the federal and in the provincial legislation. Both laws require that organizations comply with a set of 10 fair information principles, and establish an independent oversight and redress mechanism. Following the issuance of this Order, complaints and investigations about the privacy-related practices of organizations in British Columbia will be handled solely by the Information and Privacy Commissioner for British Columbia in respect of transactions that take place within the province. Complaints and investigations involving federal works, businesses or undertakings and cross-border transactions will continue to involve the Privacy Commissioner of Canada.

Consultation

Canadian businesses and the general public, as well as provincial governments, have already been made aware of the federal government's commitment to exempt organizations subject to provincial/territorial laws that are substantially similar to the PIPEDA. During Parliamentary consideration of the legislation, which included extensive hearings before the Standing Committee on Industry and the Senate Standing Committee on Social Affairs, Science and Technology, and through speeches, press releases and other communications to the public, the Government of Canada has clearly indicated its intention to encourage provinces and territories to develop substantially similar privacy legislation, and that the federal Act would not apply to organizations subject to these laws for transactions taking place within the province or territory.

Provincial and territorial governments, along with the general public and the business community were provided with additional information on the Act's substantially similar provision when Industry Canada published its policy and criteria for determining substantially similar provincial and territorial legislation in the Canada Gazette in August 2002.

Industry Canada has engaged in discussions with the Office of the Privacy Commissioner of Canada as well as with provincial privacy commissioners to discuss the government's intent to review the substantially similar character of provincial laws. The Privacy Commissioner of Canada indicated that in her opinion the British Columbia privacy law meets the criteria for recognizing its substantially similar nature. She also expressed her support for an exemption Order exempting organizations in British Columbia from the federal Act. The Information and Privacy Commissioner for British Columbia, David Loukidelis, also expressed support for the British Columbia privacy law and for an exemption Order.

The proposed Order was pre-published in the Canada Gazette, Part I, on April 10, 2004. To facilitate public comments concerning the proposed Order, Industry Canada notified the privacy advocacy community and interested privacy organizations in advance of pre-publication in the Canada Gazette. Information was also made available on the Industry Canada web site (http://strategis.gc.ca/privacy). The 15-day public comment period which followed the pre-publication of the proposed Order, yielded no comments from the public.

Compliance and Enforcement

This Order confirms that organizations in British Columbia will not be subject to the federal private sector privacy law. Compliance with privacy rules and enforcement of the British Columbia privacy law is delivered through the Information and Privacy Commissioner for British Columbia, in respect of the collection, use and disclosure of personal information that take place within the province. The Privacy Commissioner of Canada will continue to be responsible for providing oversight in relation to the activities of federal works, undertakings and businesses within the province and in relation to the collection, use and disclosure of personal information that crosses provincial boundaries in the course of commercial activity.

Contact

Mr. Richard Simpson
Director General
Electronic Commerce Branch
Industry Canada
300 Slater Street
Room D2090
Ottawa, Ontario
K1A 0C8
Telephone: (613) 990-4292
FAX: (613) 941-0178
E-mail: simpson.richard@ic.gc.ca

Footnote a

S.C. 2000, c. 5

Footnote b

S.C. 2000, c. 5

NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with hypertext language (HTML). Its content is very similar except for the footnotes, the symbols and the tables.

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