The Personal Information Protection And Identity Theft Prevention Act (Bill 211) has recently passed in Manitoba and takes effect upon proclamation.

This Private Member’s Bill was most recently introduced on May 28, 2013 but had been put forward a number of times previously. The Explanatory Note sets out that:

This Bill governs the collection, use, disclosure and destruction of personal information by organizations in the private sector. It also establishes a duty for those organizations to notify individuals who may be affected when the personal information the organization has collected is lost, stolen or compromised.

Winnipeg lawyer Brian Bowman, one of the drafters of the legislation, explained to me that the Bill was based on similar privacy legislation in Alberta that has been deemed to be substantially similar to PIPEDA. He expects that this legislation, when in effect, will likewise be found to be substantially similar to the federal privacy legislation. The effect of such an exemption would be that most activities of Manitoba businesses (except, for example, international or inter-provincial disclosures of information, or those under federal jurisdiction) would be governed by the provincial legislative scheme rather than PIPEDA.

Bowman went on to describe the legislation as more business-friendly than PIPEDA, while at the same time providing broader privacy protections and greater accessibility to individuals. For example, s.22 contains an exemption with respect to collection and use of personal information in the course of a business transaction, defined as:

…a transaction consisting of the purchase, sale, lease, merger or amalgamation or any other type of acquisition or disposal of, or the taking of a security interest in respect of, an organization or a portion of an organization or any business or activity or business asset of an organization and includes a prospective transaction of such a nature.

The Personal Information Protection and Identity Theft Prevention Act is noteworthy as well for its breach provisions and especially, the breach notification provisions set out in s. 34 of the Act:

Protection of information

34(1) An organization must protect personal information that is in its custody or under its control by making reasonable security arrangements against risks such as unauthorized access, collection, use, disclosure, copying, modification, disposal or destruction.

Notice if control of information lost

34(2) An organization must, as soon as reasonably practicable and in the prescribed manner, notify an individual if personal information about the individual that is in its custody or under its control is stolen, lost or accessed in an unauthorized manner.

Exception re law enforcement agency investigation

34(3) The requirement to notify an individual under subsection (2) does not apply where

(a) the organization is instructed to refrain from doing so by a law enforcement agency that is investigating the theft, loss or unauthorized accessing of the personal information; or

(b) the organization is satisfied that it is not reasonably possible for the personal information to be used unlawfully.

Right of action

34(4) An individual may commence an action in a court of competent jurisdiction against an organization for damages arising from its failure to

(a) protect personal information that is in its custody or under its control; or

(b) provide an individual notice under subsection (2), if it was not reasonable for the organization to have been satisfied that the personal information that was stolen, lost or accessed in an unauthorized manner would not be used unlawfully.

Other rights not affected

34(5) The right of action under this section is in addition to any other right of action or remedy available at law. But where the court deems it just, damages awarded in an action under this section may be taken into account in assessing damages in any other proceeding arising out of the failure of the organization to protect personal information in its custody or under its control.

The form and content of such notifications to affected individuals will be prescribed by regulation.

The Act, when it takes effect, will apply to law firms and their organizational clients. It will impact the rights of employees of covered organizations as well. Because the provisions vary from the current scheme under PIPEDA, Bowman emphasized the need for lawyers practicing in Manitoba to ensure their business clients are aware that this legislation has been enacted and will take effect.

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