As I was preparing a presentation I will be giving at Marcus Evans’ Document Retention and E-Discovery: Best Practices for Canadian Corporations conference in Toronto on October 19th regarding the understanding and management of E-docs and records, I realised that these three concepts are confused by everyone, even the Legislator. Here is a list of the confusing definitions you will find in different statutes from Canada, Ontario and Quebec. If you know of any other interesting ones, I would love to know!
To me, a records is Information (processed data) stored on any type of media, created or received, and maintained as evidence and information by an organisation or person in pursuance of legal obligations or in the transaction of business.
Personal Information Protection and Electronic Documents Act (PIPEDA), s.2
“record” includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine-readable record and any other documentary material, regardless of physical form or characteristics, and any copy of any of those things.
Evidence Act , s. 34.1 (1)
“electronic record” means data that is recorded or stored on any medium in or by a computer system or other similar device, that can be read or perceived by a person or a computer system or other similar device, and includes a display, printout or other output of that data, other than a printout referred to in subsection (6);
Access to Information Act, s.3
Competition Act, s. 2
“record” (« document ») includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof;
Library and Archives of Canada Act, s.2
“record” (« document ») means any documentary material other than a publication, regardless of medium or form.
It is sad to see that the Legislator tacitly admits he confuses the concept by translating “record” by “document”… Mr. Legislator, French has the notion of “dossiers” to refer to records!
I understand the notion of document to be the information « physical » support to communicate and store collections of data.
Ontario Rules of Civil Procedure, s. 30.01(1)
“document” includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form;
Any medium on which is recorded or marked anything that is capable of being read or understood by a person or a computer system or other device.
“electronic document” means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, print-out or other output of the data and any document, record, order, exhibit, notice or form that contains the data.
An Act to establish a Legal framework for information technology, s.3
Information inscribed on a medium constitutes a document. The information is delimited and structured, according to the medium used, by tangible or logical features and is intelligible in the form of words, sounds or images. The information may be rendered using any type of writing, including a system of symbols that may be transcribed into words, sounds or images or another system of symbols.
I agree a bit more here…
I understand data as being a “given”, something we accept at face value, raw facts like numbers, characters or images. In fact, I would say that data convert physical realities into symbols.
Evidence Act, s. 34.1 (1)
Criminal Code, s.342.1 and 841
Personal Information Protection and Electronic Documents Act, s. 31
Competition Act, s.30
Representations, in any form, of information or concepts.
The point here is that there is still a need for education when it comes to defining basic concepts that affect our daily practice as jurists and the daily life of most individuals and corporations.