The Office Of The Information And Privacy Commissioner Of Ontario Responds To The Province’s Proposal For Private Sector Privacy Law Reform

M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was originally posted on E-TIPS™ For Deeth Williams Wall LLP on September 15, 2021.

On September 7, 2021, the Office of the Information and Privacy Commissioner of Ontario (IPC) issued its response to the Ontario government’s white paper on proposals for a provincial private sector privacy law, as previously reported by the E-TIPS® Newsletter here.

In its response, the IPC applauded the provincial government for taking a principles-based, flexible, pragmatic, and proportionate approach in its proposal that is consistent with the IPC’s response to the province’s previous consultation document, Improving private sector privacy for Ontarians in a digital age. It also commended the province’s decision to base its legislative proposals on the federal government’s Bill C-11, which would assist in giving the proposed legislation “substantially similar” status and exempt organizations conducting commercial activity in Ontario from regulation under the federal regime.

The IPC stressed the need for Ontario to push forward with its plans for modernizing its privacy laws regardless of the fate of Bill C-11. With the upcoming federal election, the fate of Bill C-11 is unclear and the IPC predicts that Bill C-11 “is destined to die on the order paper”. However, it believes that a provincial statute would be beneficial to Ontarians and that Ontario should proceed irrespective of the final decision on Bill C-11. The IPC states that provincial legislation would expand privacy protections to those who are not currently covered by federal privacy laws and fill constitutional gaps for charities, unions, professional associations, and political parties in Ontario. It also believes that a law that is tailored to Ontarians will better assist the province’s small and medium-sized businesses by being geared to the unique experiences that they face in their trade.

Although the response was generally positive, the IPC mentioned key gaps in the provincial government’s proposal that would need to be addressed in an implemented statute. According to the IPC, the white paper failed to raise important measures, such as mandatory breach notification, provisions that discuss conflicts between laws, and transitory provisions. Furthermore, it stated that while the white paper raised certain measures, it sometimes failed to provide detailed drafting language for those matters. Ultimately, these drawbacks did not have a major impact on the IPC’s overall opinion, for it assumed that the missing details would be included in a future bill.

If the Ontario government decides to proceed with the new privacy legislation, the IPC has pledged to prioritize the development of foundational building blocks and oversight mechanisms to support the successful implementation of the legislation in the province.

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