PIPEDA 2-5: The other privacy rules

In previous articles, I provided an overview of those provisions of the Uniform Electronic Commerce Act (UECA) that specifically relate to government, and discussed provincial and territorial implementation of some of the principles embodied in the UECA. In this article, I’ll discuss the federal response to the reduction of impediments to electronic activity.

While many people are familiar with Part 1 of the Personal Information Protection and Electronic Documents Act (PIPEDA), which sets out the privacy rules for business activity coming under federal jurisdiction and for cross-border activity, few people are familiar with Parts 2 to 5. These facilitate the use by the federal government of electronic means to communicate or record information or transactions. Before proceeding with a brief description of the matters covered by these parts of PIPEDA, it is important to note that under the Canadian Constitution, the provinces have legislative jurisdiction over property and civil rights, including contractual matters – not the federal government. For that reason, PIPEDA does not specifically concern itself with such matters – unlike provincial e-commerce and e-government laws, which address certain issues that are crucial to contract formation in an electronic environment.

Part 2 of PIPEDA specifically authorizes the use of electronic alternatives for a number of functions including:

• The creation, collection, receipt, storage, transfer, distribution, publication or other manipulation of documents or information by federal government institutions;

• Payments made to the Government of Canada;

• The use of forms, and the filing and provision of information that is in compliance with the manner prescribed by a responsible authority of a federal institution;

• Reliance on a certificate or other document signed by a minister or public officer for evidentiary purposes;

• Retention of documents;

• Specified notarial acts and seals;

• Requirements in federal law for one person to provide another with certain documents or information; and

• Satisfaction of certain requirements for writing, originality, signatures, statements under oath, statements declaring truths, witnessed signatures and copies.

When considering whether an electronic alternative to a function is available in a specific circumstance, and if so, how compliance with the requirement is to be accomplished, in addition to consulting PIPEDA, it may also be necessary to consult Schedules 2 and 3 to PIPEDA and/or applicable regulations passed directly under either PIPEDA or under the legislation pursuant to which the function is to be performed. To date, not all types of regulations contemplated by Part 2 of PIPEDA have been passed. Therefore, to that extent, some of the sources of uncertainty concerning electronic activity that PIPEDA strives to eliminate have not yet been sufficiently addressed.

Part 3 of PIPEDA amends the Canada Evidence Act to provide for the use of electronic documents for evidentiary purposes under federal jurisdiction. Compliance with the requirements specified by the amendments gives rise to certain presumptions that can benefit a party who wishes to rely on documents tendered in electronic form or as printouts of electronic documents. Parts 4 and 5 of PIPEDA amend the Statutory Instruments Act and the Statute Revision Act to provide for the publication of statutory notices, regulations and legislation (including consolidations) in electronic form.

A party wishing to interact with the federal government or with another party with respect to a matter falling under federal jurisdiction in electronic form should ensure that he or she adheres to the requirements of PIPEDA and related schedules and regulations in order to avoid uncertainty with respect to the effect of the information exchange or other transaction. In addition, provincial rules relating to the formation of contracts in an electronic environment may also apply to certain situations to which PIPEDA applies.

The full text of PIPEDA is available at www.privcom.gc.ca/legislation/02_06_01_e.asp.

Christian (Chris) S. Tacit ( christian.tacit@nelligan.ca) is the Practice Group Leader of the Technology Law Practice Group at Nelligan O’Brien Payne LLP.