Bill C-27

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2000, c. 5

AMENDMENTS TO THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT

78. The Personal Information Protection and Electronic Documents Act is amended by adding the following after section 7:

Definitions

7.1 (1) The following definitions apply in this section.

“access”
« utiliser »

“access” means to program, to execute programs on, to communicate with, to store data in, to retrieve data from, or to otherwise make use of any resources, including data or programs on a computer system or a computer network.

“computer program”
« programme d’ordinateur »

“computer program” has the same meaning as in subsection 342.1(2) of the Criminal Code.

“computer system”
« ordinateur »

“computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code.

“electronic address”
« adresse électronique »

“electronic address” means an address used in connection with

(a) an electronic mail account;

(b) an instant messaging account; or

Collection of electronic addresses, etc.

(2) Section 7 and the exception set out in clause 4.3 of Schedule 1 do not apply in respect of

(a) the collection of an individual’s electron- ic address, if the address is collected by the use of a computer program that is designed or marketed for use in generating or searching for, and collecting, electronic addresses; or

(b) the use of an individual’s electronic address, if the address is collected by the use of a computer program described in paragraph (a).

Accessing a computer system to collect personal information, etc.

(3) Section 7 and the exception set out in clause 4.3 of Schedule 1 do not apply in respect of

(a) the collection of personal information, through any means of telecommunication, if the collection is made by accessing a computer system or causing a computer system to be accessed without authorization; or

(b) the use of personal information that is collected in a manner described in paragraph (a).

79. Section 12 of the Act is replaced by the following:

Examination of complaint by Commissioner

12. (1) The Commissioner shall conduct an investigation in respect of a complaint, unless the Commissioner is of the opinion that

(a) the complainant ought first to exhaust grievance or review procedures otherwise reasonably available;

(b) the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under the laws of Canada, other than this Part, or the laws of a province; or

Exception

(2) Despite subsection (1), the Commissioner is not required to conduct an investigation in respect of an act alleged in a complaint if the Commissioner is of the opinion that the act, if proved, would constitute a contravention of any of sections 6 to 9 of the Electronic Commerce Protection Act or section 52.01 of the Competition Act or would constitute conduct that is reviewable under section 74.01 of that Act.

Notification

(3) The Commissioner shall notify the complainant and the organization that the Commissioner will not investigate the complaint or any act alleged in the complaint and give reasons.

Compelling reasons

(4) The Commissioner may reconsider a decision not to investigate under subsection (1), if the Commissioner is satisfied that the complainant has established that there are compelling reasons to investigate.

Powers of Commissioner

12.1 (1) In the conduct of an investigation of a complaint, the Commissioner may

(a) summon and enforce the appearance of persons before the Commissioner and compel them to give oral or written evidence on oath and to produce any records and things that the Commissioner considers necessary to investigate the complaint, in the same manner and to the same extent as a superior court of record;

(b) administer oaths;

(c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law;

(d) at any reasonable time, enter any premises, other than a dwelling-house, occupied by an organization on satisfying any security requirements of the organization relating to the premises;

(e) converse in private with any person in any premises entered under paragraph (d) and otherwise carry out in those premises any inquiries that the Commissioner sees fit; and

(f) examine or obtain copies of or extracts from records found in any premises entered under paragraph (d) that contain any matter relevant to the investigation.

Dispute resolution mechanisms

(2) The Commissioner may attempt to resolve complaints by means of dispute resolution mechanisms such as mediation and conciliation.

Delegation

(3) The Commissioner may delegate any of the powers set out in subsection (1) or (2).

Return of records

(4) The Commissioner or the delegate shall return to a person or an organization any record or thing that they produced under this section within 10 days after they make a request to the Commissioner or the delegate, but nothing precludes the Commissioner or the delegate from again requiring that the record or thing be produced.

Certificate of delegation

(5) Any person to whom powers set out in subsection (1) are delegated shall be given a certificate of the delegation and the delegate shall produce the certificate, on request, to the person in charge of any premises to be entered under paragraph (1)(d).

Discontinuance of Investigation

Reasons

12.2 (1) The Commissioner may discontinue the investigation of a complaint if the Commissioner is of the opinion that

(a) there is insufficient evidence to pursue the investigation;

(b) the complaint is trivial, frivolous or vexatious or is made in bad faith;

(d) the matter is already the object of an ongoing investigation under this Part;

(e) the matter has already been the subject of a report by the Commissioner;

(f) any of the circumstances mentioned in paragraph 12(1)(a), (b) or (c) apply; or

(g) the matter is being or has already been addressed under a procedure referred to in paragraph 12(1)(a) or (b).

Other reason

(2) The Commissioner may discontinue an investigation in respect of an act alleged in a complaint if the Commissioner is of the opinion that the act, if proved, would constitute a contravention of any of sections 6 to 9 of the Electronic Commerce Protection Act or section 52.01 of the Competition Act or would constitute conduct that is reviewable under section 74.011 of that Act.

Notification

(3) The Commissioner shall notify the complainant and the organization that the investigation has been discontinued and give reasons.

80. Subsection 13(2) of the Act is repealed.

81. Subsections 14(1) and (2) of the Act are replaced by the following:

Application

14. (1) A complainant may, after receiving the Commissioner’s report or being notified under subsection 12.2(3) that the investigation of the complaint has been discontinued, apply to the Court for a hearing in respect of any matter in respect of which the complaint was made, or that is referred to in the Commissioner’s report, and that is referred to in clause 4.1.3, 4.2, 4.3.3, 4.4, 4.6, 4.7 or 4.8 of Schedule 1, in clause 4.3, 4.5 or 4.9 of that Schedule as modified or clarified by Division 1, in subsection 5(3) or 8(6) or (7) or in section 10.

Time of application

(2) A complainant must make an application within 45 days after the report or notification is sent or within any further time that the Court may, either before or after the expiry of those 45 days, allow.

82. (1) Subsection 20(1) of the Act is replaced by the following:

Confidentiality

20. (1) Subject to subsections (2) to (6), 12(3), 12.2(3), 13(3), 19(1), 23(3) and 23.1(1) and section 25, the Commissioner or any person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge as a result of the performance or exercise of any of the Commissioner’s duties or powers under this Part.

(2) Section 20 of the Act is amended by adding the following after subsection (5):

Disclosure under Electronic Commerce Protection Act

(6) The Commissioner may disclose, or may authorize any person acting on behalf or under the direction of the Commissioner to disclose, information in accordance with subsection 58(3) or 60(1) of the Electronic Commerce Protection Act.

83. Section 23 of the Act is replaced by the following:

Consultations with provinces

23. (1) If the Commissioner considers it appropriate to do so, or on the request of an interested person, the Commissioner may, in order to ensure that personal information is protected in as consistent a manner as possible, consult with any person who, under provincial legislation, has functions and duties similar to those of the Commissioner with respect to the protection of such information.

Agreements or arrangements with provinces

(2) The Commissioner may enter into agreements or arrangements with any person referred to in subsection (1) in order to

(a) coordinate the activities of their offices and the office of the Commissioner, including to provide for mechanisms for the handling of any complaint in which they are mutually interested;

(b) undertake and publish research or develop and publish guidelines or other instruments related to the protection of personal information;

(c) develop model contracts or other instruments for the protection of personal information that is collected, used or disclosed interprovincially or internationally; and

(d) develop procedures for sharing information referred to in subsection (3).

Sharing of information with provinces

(3) The Commissioner may, in accordance with any procedure established under paragraph (2)(d), share information with any person referred to in subsection (1), if the information

(a) could be relevant to an ongoing or potential investigation of a complaint or audit under this Part or provincial legislation that has objectives that are similar to this Part; or

(b) could assist the Commissioner or that person in the exercise of their functions and duties with respect to the protection of personal information.

Purpose and confidentiality

(4) The procedures referred to in paragraph (2)(d) shall

(a) restrict the use of the information to the purpose for which it was originally shared; and

(b) stipulate that the information be treated in a confidential manner and not be further disclosed without the express consent of the Commissioner.

Disclosure of information to foreign state

23.1 (1) Subject to subsection (3), the Commissioner may, in accordance with any procedure established under paragraph (4)(b), disclose information referred to in subsection (2) that has come to the Commissioner’s knowledge as a result of the performance or exercise of any of the Commissioner’s duties or powers under this Part to any person or body who, under the legislation of a foreign state, has

(a) functions and duties similar to those of the Commissioner with respect to the protection of personal information; or

(b) responsibilities that relate to conduct that is substantially similar to conduct that would be in contravention of this Part.

Information that can be shared

(2) The information that the Commissioner is authorized to disclose under subsection (1) is information that the Commissioner believes

(a) would be relevant to an ongoing or potential investigation or proceeding in respect of a contravention of the laws of a foreign state that address conduct that is substantially similar to conduct that would be in contravention of this Part; or

(b) is necessary to disclose in order to obtain from the person or body information that may be useful to an ongoing or potential investigation or audit under this Part.

Written arrangements

(3) The Commissioner may only disclose information to the person or body referred to in subsection (1) if the Commissioner has entered into a written arrangement with that person or body that

(a) limits the information to be disclosed to that which is necessary for the purpose set out in paragraph (2)(a) or (b);

(b) restricts the use of the information to the purpose for which it was originally shared; and

(c) stipulates that the information be treated in a confidential manner and not be further disclosed without the express consent of the Commissioner.

Arrangements

(4) The Commissioner may enter into arrangements with one or more persons or bodies referred to in subsection (1) in order to

(a) provide for cooperation with respect to the enforcement of laws protecting personal information, including the sharing of information referred to in subsection (2) and the provision of mechanisms for the handling of any complaint in which they are mutually interested;

(b) establish procedures for sharing information referred to in subsection (2);

(c) develop recommendations, resolutions, rules, standards or other instruments with respect to the protection of personal information;

(d) undertake and publish research related to the protection of personal information;

(e) share knowledge and expertise by different means, including through staff exchanges; or

(f) identify issues of mutual interest and determine priorities pertaining to the protection of personal information.

1993, c. 38

AMENDMENTS TO THE TELECOMMUNICATIONS ACT

84. Section 39 of the Telecommunications Act is amended by adding the following after subsection (5):

Disclosure authorized by Electronic Commerce Protection Act

(5.1) The Commission may disclose designated information obtained by it in the perform- ance or exercise of its duties or powers related to any of sections 6 to 9 of the Electronic Commerce Protection Act in accordance with subsection 58(1) or 60(1) of that Act.

85. (1) Section 41 of the Act is renumbered as subsection 41(1) and is amended by adding the following:

Exception — Electronic Commerce Protection Act

(2) Despite subsection (1), the Commission may not prohibit or regulate the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications, if the telecommunication is

(a) a commercial electronic message to which section 6 of the Electronic Commerce Protection Act applies; or

(b) a commercial electronic message referred to in subsection 6(5) of that Act, except to the extent that it is one referred to in subsection 6(7) of that Act.

(2) Subsection 41(2) of the Act, as enacted by subsection (1), is replaced by the following:

Exception — Electronic Commerce Protection Act

(2) Despite subsection (1), the Commission may not prohibit — or, except to the extent provided by subsection (3), regulate — the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications, if the telecommunication is a commercial electronic message to which the Electronic Commerce Protection Act applies or a commercial electronic message referred to in subsection 6(5) of that Act.

Regulation — Electronic Commerce Protection Act

(3) For the purposes of subsection (2), the Commission may regulate, with respect to the types of telecommunications described in subsection (4),

(a) the hours during which the telecommunications facilities of a Canadian carrier may be used by any person;

(b) the contact information to be provided by a person referred to in subsection (2) and the circumstances in which and persons to whom it must be provided;

(d) telecommunications where a live operator is not immediately available when the recipient of the telecommunication connects to it.

Types of telecommunications

(4) For the purposes of subsection (3), the types of telecommunications are those that are

(a) in whole or in part, interactive two-way voice communications between individuals;

(b) sent by means of a facsimile to a telephone account; or

2005, c. 50, s. 1

86. Sections 41.1 to 41.7 of the Act are repealed.

COMING INTO FORCE

Order in council

87. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.

Published under authority of the Speaker of the House of Commons

Available from:
Publishing and Depository Services
Public Works and Government Services Canada

Explanatory Notes

Personal Information Protection and Electronic Documents Act

Clause 78: New.

Clause 79: Existing text of section 12:

12. (1) The Commissioner shall conduct an investigation in respect of a complaint and, for that purpose, may

(b) administer oaths;

(c) receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Commissioner sees fit, whether or not it is or would be admissible in a court of law;

(d) at any reasonable time, enter any premises, other than a dwelling-house, occupied by an organization on satisfying any security requirements of the organization relating to the premises;

(e) converse in private with any person in any premises entered under paragraph (d) and otherwise carry out in those premises any inquiries that the Commissioner sees fit; and

(f) examine or obtain copies of or extracts from records found in any premises entered under paragraph (d) that contain any matter relevant to the investigation.

(2) The Commissioner may attempt to resolve complaints by means of dispute resolution mechanisms such as mediation and conciliation.

(3) The Commissioner may delegate any of the powers set out in subsection (1) or (2).

(4) The Commissioner or the delegate shall return to a person or an organization any record or thing that they produced under this section within ten days after they make a request to the Commissioner or the delegate, but nothing precludes the Commissioner or the delegate from again requiring that the record or thing be produced.

Clause 80: Existing text of subsection 13(2):

(2) The Commissioner is not required to prepare a report if the Commissioner is satisfied that

(a) the complainant ought first to exhaust grievance or review procedures otherwise reasonably available;

(b) the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under the laws of Canada, other than this Part, or the laws of a province;

(c) the length of time that has elapsed between the date when the subject-matter of the complaint arose and the date when the complaint was filed is such that a report would not serve a useful purpose; or

(d) the complaint is trivial, frivolous or vexatious or is made in bad faith.

If a report is not to be prepared, the Commissioner shall inform the complainant and the organization and give reasons.

Clause 81: Existing text of subsections 14(1) and (2):

14. (1) A complainant may, after receiving the Commissioner’s report, apply to the Court for a hearing in respect of any matter in respect of which the complaint was made, or that is referred to in the Commissioner’s report, and that is referred to in clause 4.1.3, 4.2, 4.3.3, 4.4, 4.6, 4.7 or 4.8 of Schedule 1, in clause 4.3, 4.5 or 4.9 of that Schedule as modified or clarified by Division 1, in subsection 5(3) or 8(6) or (7) or in section 10.

(2) The application must be made within forty-five days after the report is sent or within any further time that the Court may, either before or after the expiry of those forty-five days, allow.

Clause 82: (1) Existing text of subsection 20(1):

20. (1) Subject to subsections (2) to (5), 13(3) and 19(1), the Commissioner or any person acting on behalf or under the direction of the Commissioner shall not disclose any information that comes to their knowledge as a result of the performance or exercise of any of the Commissioner’s duties or powers under this Part.

(2) New.

Clause 83: Existing text of section 23:

23. (1) If the Commissioner considers it appropriate to do so, or on the request of an interested person, the Commissioner may, in order to ensure that personal information is protected in as consistent a manner as possible, consult with any person who, under provincial legislation that is substantially similar to this Part, has powers and duties similar to those of the Commissioner.

(2) The Commissioner may enter into agreements with any person with whom the Commissioner may consult under subsection (1)

(a) to coordinate the activities of their offices and the office of the Commissioner, including to provide for mechanisms for the handling of any complaint in which they are mutually interested;

(b) to undertake and publish research related to the protection of personal information; and

(c) to develop model contracts for the protection of personal information that is collected, used or disclosed interprovincially or internationally.

Telecommunications Act

Clause 84: New.

Clause 85: (1) New.

Clause 86: (1) Existing text of sections 41.1 to 41.7:

41.1 Sections 41.2 to 41.7 create a legislative framework for a national do not call list.

41.2 The Commission may, for the purposes of section 41,

(a) administer databases or information, administrative or operational systems; and

(b) determine any matter, and make any order, with respect to the databases or the information, administrative or operational systems.

41.3 (1) The Commission may, in writing and on specified terms, delegate to any person, including any body created by the Commission for that purpose, any of its powers under section 41.2 and any of its powers to conduct investigations to determine whether there has been a contravention of any prohibition or requirement of the Commission under section 41.

(2) For the purposes of sections 62 and 63, a decision of a delegate is deemed to be a decision of the Commission.

(3) For greater certainty, a delegation of powers is a decision of the Commission.

(4) The Commission may, in writing, revoke a delegation of powers. A revocation is deemed not to be a decision of the Commission.

41.4 (1) A delegate may charge rates for exercising delegated powers.

(2) Despite the Financial Administration Act, money collected by a delegate is deemed not to be public money.

41.5 The Commission may regulate the rates charged by a delegate, whether by requiring pre-approval of the rates or otherwise, and the manner in which the delegate exercises any of the delegated powers.

41.6 (1) The Commission shall, within six months after the end of each fiscal year, deliver a report to the Minister on the operation of the national do not call list in that fiscal year.

(2) The report shall set out any costs or expenditures related to the list, the number of Canadians using the list, the number of telemarketers accessing the list, any inconsistencies in the prohibitions or requirements of the Commission under section 41 that are applicable to the operation of the list, and an analysis of the effectiveness of the list.

(3) The Minister shall cause a copy of the report referred to in subsection (1) to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives the report.

41.7 (1) An order made by the Commission that imposes a prohibition or requirement under section 41 that relates to information contained in any database or any information, administrative or operational system administered under section 41.2 for the purpose of a national do not call list does not apply in respect of a telecommunication

(a) made by or on behalf of a registered charity within the meaning of subsection 248(1) of theIncome Tax Act;

(b) made to a person

(i) with whom the person making the telecommunication, or the person or organization on whose behalf the telecommunication is made, has an existing business relationship, and

(ii) who has not made a do not call request in respect of the person or organization on whose behalf the telecommunication is made;

(c) made by or on behalf of a political party that is a registered party as defined in subsection 2(1) of the Canada Elections Act or that is registered under provincial law for the purposes of a provincial or municipal election;

(d) made by or on behalf of a nomination contestant, leadership contestant or candidate of a political party described in paragraph (c) or by or on behalf of the official campaign of such a contestant or candidate;

(e) made by or on behalf of an association of members of a political party described in paragraph (c) for an electoral district;

(f) made for the sole purpose of collecting information for a survey of members of the public; or

(g) made for the sole purpose of soliciting a subscription for a newspaper of general circulation.

(2) The following definitions apply in subsection (1).

“candidate” means a candidate as defined in subsection 2(1) of the Canada Elections Act or a candidate whose nomination has been confirmed, for the purposes of a provincial or municipal election, by a political party that is registered under provincial law.

“existing business relationship” means a business relationship that has been formed by a voluntary two-way communication between the person making the telecommunication and the person to whom the telecommunication is made, arising from

(a) the purchase of services or the purchase, lease or rental of products, within the eighteen-month period immediately preceding the date of the telecommunication, by the person to whom the telecommunication is made from the person or organization on whose behalf the telecommunication is made;

(b) an inquiry or application, within the six-month period immediately preceding the date of the telecommunication, by the person to whom the telecommunication is made in respect of a product or service offered by the person or organization on whose behalf the telecommunication is made; or

(c) any other written contract between the person to whom the telecommunication is made and the person or organization on whose behalf the telecommunication is made that is currently in existence or that expired within the eighteen-month period immediately preceding the date of the telecommunication.

“leadership contestant” means a leadership contestant as defined in subsection 2(1) of the Canada Elections Act or a contestant for the leadership of a political party that is registered under provincial law.

“nomination contestant” means a nomination contestant as defined in subsection 2(1) of the Canada Elections Act or a contestant for nomination by a political party that is registered under provincial law as its candidate in a provincial or municipal election.

(3) Any person making a telecommunication referred to in subsection (1) must, at the beginning of the telecommunication, identify the purpose of the telecommunication and the person or organization on whose behalf the telecommunication is made.

(4) Every person or organization that, by virtue of subsection (1), is exempt from the application of an order made by the Commission that imposes a prohibition or requirement under section 41 shall maintain their own do not call list and shall ensure that no telecommunication is made on their behalf to any person who has requested that they receive no telecommunication made on behalf of that person or organization.

(5) Subsections (3) and (4) do not apply in respect of a person making a telecommunication referred to in paragraph (1)(f).