Quebec Poised to Challenge Federal Privacy Law

The Government of Quebec is set to challenge the federal law governing the collection and use of personal information. The Quebec Court of Appeal has granted an application by the province's Attorney General to contest the constitutional validity of the federal privacy laws, the last phase of which came into force January 1, 2004. The federal Personal Information Protection and Electronic Documents Act(PIPEDA) came into force in three stages, beginning in 2001. As reported in a recent issue of E-TIPSâ„¢ (Vol 2, No 13, December 4, 2003), the final stage of PIPEDA applies to all private sector companies in every province, unless the province has passed its own substantially similar legislation. Because the privacy legislation already enacted by Quebec has been formally approved as "substantially similar" to the federal statute, the third phase of PIPEDA does not apply to Quebec. However, despite the lack of direct conflict between the two pieces of legislation, Quebec is apparently concerned that under the Canadian Constitution the federal legislation has encroached on the provinces' exclusive jurisdiction in matters relating to property and civil rights within a province. In Canada, the provinces have the authority to regulate intra-provincial trade and commerce and the federal government has the power to regulate inter-provincial and international commerce. Quebec will argue that imposing a federal statute that will regulate how personal information is handled in intra-provincial commerce is unconstitutional. The federal government will no doubt argue that on-line commerce could be stifled if there were no consistent privacy protection throughout Canada and therefore it is really just ensuring consistent regulation of inter-provincial and international commerce. The court challenge may serve to increase confusion among those enterprises across Canada that have not prepared for PIPEDA and now are scrambling to comply with the new law. Summary by: James Kosa For more information on any aspect of Canadian privacy legislation, contact Amy-Lynne Williams (awilliams@dww.com) or Michael Erdle (merdle@dww.com).