Vol. 137, No. 25 — December 3, 2003

Registration
SOR/2003-374 19 November, 2003

PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT

P.C. 2003-1842 19 November, 2003

Whereas the Governor in Council is satisfied that An Act respecting the protection of personal information in the private sector, R.S.Q., c. P-39.1, of the Province of Quebec which is substantially similar to Part 1 of the Personal Information Protection and Electronic Documents Act (see footnote a) , applies to the organizations referred to 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 Quebec Exemption Order.

ORGANIZATIONS IN THE PROVINCE OF QUEBEC EXEMPTION ORDER

EXEMPTION

1. Any organization, other than a federal work, undertaking or business, that carries on an enterprise within the meaning of section 1525 of the Civil Code of Québec and to which An Act respecting the protection of personal information in the private sector, R.S.Q., c. P-39.1, 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 Quebec.

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 is 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 outside a province for consideration. On January 1, 2004, the Act will apply to all collections, uses or disclosures of personal information in the course of commercial activity, either within, or outside a province. Paragraph 26(2)(b) of the PIPEDA gives the Governor in Council the power to "if satisfied that legislation of a province that is substantially similar to this Part applies to an organization, a class of organizations, an activity or a class of activities, exempt the organization, activity or class from the application of this Part in respect of the collection, use or disclosure of personal information that occurs within that province".

The federal government has expanded the reach of the PIPEDA beyond federal works, undertakings and businesses through the use of the general branch of the Constitutional trade and commerce power. This enables privacy to receive comprehensive and even protection across the country and across sectors. At the same time, the federal government has included provisions in the PIPEDA to exempt organizations or activities subject to provincial or territorial substantially similar laws from the federal Act with a view to recognizing existing provincial or territorial privacy regimes and encouraging provinces and territories to develop their own privacy laws in a manner that addresses the particular needs and circumstances of their own jurisdictions. Provinces are also encouraged to pass legislation that protects privacy in areas that are beyond the reach of the federal government, and strictly subject to the legislative or regulatory authority of provinces/territories. The PIPEDA provides a standard around which provinces can legislate when developing their own privacy laws.

On August 3, 2002, Industry Canada published the policy by which provincial laws would be reviewed, and the criteria for exempting organizations that are subject to legislation that is substantially similar to that provided by the PIPEDA. Substantially similar legislation provides privacy protection that is consistent and equivalent to the federal Act. The federal government expects substantially similar provincial/territorial legislation to incorporate the ten principles in SCHEDULE 1 (Section 5) of the PIPEDA, principles set out in the National Standard of Canada entitled Model Code for the Protection of Personal Information, CAN/CSA-QQ830-96; 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. Quebec's legislation, An Act Respecting the Protection of Personal Information in the Private Sector, provides privacy protection that is substantially similar to that of the Personal Information Protection and Electronic Documents Act.

The purpose of this Order is to exempt from the PIPEDA organizations that are subject to Quebec's Act Respecting the Protection of Personal Information in the Private Sector, for all collections, uses or disclosures of personal information that occur within the province of Quebec. The PIPEDA will continue to apply to the collection, use or disclosure of personal information in the context of the operations of a federal work, undertaking or business in the province of Quebec as well as to the collection use or disclosure of personal information outside the province of Quebec.

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. In addition, greater harmonization creates a consistent set of rules with regard to the protection of personal information, covering all businesses and organizations across all sectors, including those which are largely subject to the legislative or regulatory authority of provinces/territories. A harmonized privacy regime provides consumers and business with the confidence that privacy protection measures are in place and that they will be overseen by an independent oversight agency such as the federal or provincial Privacy Commissioners.

Costs

The Order will have no cost or have any impact on the operations of organizations in Quebec. It confirms that organizations in the province of Quebec (other than federal works, undertakings and businesses) will not be subject to the PIPEDA and will continue to comply with the existing privacy law as they have since 1994. The Order provides certainty for organizations and individuals as to which privacy law applies in Quebec.

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 Quebec organizations from the PIPEDA. Bill C-54 was introduced on October 1, 1998 and received extensive hearings before the Standing Committee on Industry. The bill was subsequently re-introduced as Bill C-6 and received extensive public hearings before the Standing Senate Committee on Social Affairs, Science and Technology. When the Act (then Bill C-54) was first tabled in Parliament in October 1998, the Minister of Industry at the time, in his presentation to the Standing Committee on Industry, stated that organizations in Quebec that are covered by that province's private sector privacy law will be exempt from the application of the PIPEDA, as the provincial law is substantially similar to the federal Act. The federal government has since reiterated this commitment in various instances through press releases and other communications to the public.

The Privacy Commissioner of Canada, who is mandated to report Parliament on the extent to which provinces have passed substantially similar laws, has also informed the public about his opinion on Quebec's privacy law. The Commissioner tabled a report in May 2002, in which he reported that, in his opinion, Quebec's Act Respecting the Protection of Personal Information in the Private Sector Legislation is substantially similar to the PIPEDA in terms of its protection of personal information.

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 for determining substantially similar provincial legislation in the Canada Gazette in August 2002.

Compliance and Enforcement

This Order confirms that organizations in Quebec will not be subject to the federal private sector privacy law and will continue to be subject to the Quebec privacy law, which has been in place since 1994. Compliance with privacy rules and enforcement of the Quebec privacy law is delivered through the Commission d'accès à l'information du Québec.

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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