Need for Privacy Reform in Ontario

With so much closed, and so little social interaction during the pandemic, there’s not many options for Canadians, as we head into the winter. It’s inevitable that many will find themselves in malls.

A recent revelation that a Canadian real estate company secretly embedded cameras in 12 different malls has some concerned about the lack of meaningful consent. Cameras themselves are pretty benign, for security purposes alone. What made it worse was that images were used with facial recognition technology to identify unique facial features and analyze them, creating biometric data.

Although provincial and federal privacy commissioners express concerns, they also noted they had no authority to levy any fines. B.C.’s privacy commissioner identified it as an “incredible shortcoming.” But B.C. still has a more robust privacy regime than in Ontario, where courts have been compelled to create a series of privacy torts to fill the statutory gaps. Alberta and Quebec also have their own privacy statutes.

Ontario also does not have a general privacy law for private-sector businesses, which is instead governed by Personal Information Protection and Electronic Documents Act (PIPEDA).

Earlier this year, the Government of Ontario launched a consultation on privacy law reform. Although a new statute could deal with issues like the ones highlighted in the recent mall situation, it may also address broader shortcomings of federal regulation.

The implementation of the General Data Protection Regulation (GDPR) in the EU, and California’s new Consumer Privacy Act of 2018 means that international business will increasingly require minimum privacy standards.

In June, 2020, Quebec initiated it’s own overhaul of privacy law under Bill 64, which would amend over a dozen different statutes, and create new rights to a person to have information de-indexed or removed from dissemination. This would effectively create a right to be forgotten in one province, but not in others.

Creating a modern and contemporary privacy statute in Ontario will not only provide Ontarians greater assurances about the right to privacy and how such information will be used, but may be crucial in the post-pandemic world in fostering greater economic growth, given that so much of it has already shifted to digital commerce.

While the pandemic will create lots of uncertain and often tragic legal circumstances, the area of privacy law reform poses the potential to create a more robust and modern framework to address our current and future needs.