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PIAC’s position on the process of determining whether provincial privacy legislation is substantially similar to the Personal Personal Information Protection and Electronic Documents Act
Richard Simpson, Director General
Electronic Commerce Branch, Industry Canada
Dear Mr. Simpson:
The Public Interest Advocacy Centre (PIAC) is a national, non-profit organization which has provided legal services and research to Canadian consumers, and the organizations that represent them, for twenty-five years. PIAC’s members include individuals, groups and organizations representing 1.2 million Canadians. As you may be aware, PIAC has been extensively involved in the development of the Personal Information Protection and Electronic Documents Act (the PIPED Act).
Given our extensive experience with this legislation, PIAC would like to comment on the Canada Gazette Notice, Part 1, September 22, 2001 regarding the process for determination of “substantially similar” provincial provisions to the Personal Information Protection and Electronic Documents Act. We believe the substance of what will be considered substantially similar legislation, as reported in the Notice, is well thought out and expressed. We are pleased to see that all ten privacy principles must be maintained, independent oversight is necessary, and the collection, use and disclosure of personal information must be in all cases”appropriate and legitimate”.These are essential conditions for substantial similarity.
However, we are concerned about the process by which provincial legislation will be reviewed and potentially approved as substantially similar. Primarily, we are concerned about the potential for important decisions on “substantial similarity” to be made without input from the public. Because any determination of legislation as “substantially similar” to the PIPED Act will essentially provide an exemption from the Act for an organization, sector or a whole province/territory, it is imperative that the utmost be done to ensure that all concerned stakeholders are consulted. We recognize that Industry Canada will be consulting with the appropriate provincial or territorial government who drafted the legislation and that the Privacy Commissioner will be notified. As well, doubtless, there will be consultation with the requesting organization or sector. However, there appears to be no opportunity for public comment. We suggest that this oversight be remedied: Industry Canada should be required to seek public input when considering any requests for a determination of “substantially similar” under the PIPED Act.
At the very least, the fact that certain legislation or proposed legislation is being assessed to determine if it is substantially similar should be made public by way of notice in the Canada Gazette. If this is not done, the most directly affected party, Canadian consumers, will not have an opportunity to comment on fundamental changes to a law designed to protect them.
We hope that you are able to use our suggestions regarding the process of establishing “substantially similar” legislation to the Personal Information Protection and Electronic Documents Act. We continue to work in this area and would be happy to consult with you on this issue. Please contact me if there is any further information you require. My contact information is above, or you can reach me by email at firstname.lastname@example.org
Kathleen Priestman, Research Analyst