Legislative Update

A couple of recent legislative changes and initiatives will be of interest to due diligence and investigative researchers.

Amendments to PIPEDA

The Digital Privacy Act, recently passed by Parliament and soon to come into force, amends the federal Personal Information Protection and Electronic Documents Act (PIPEDA), which applies to private sector organizations that collect, use, or disclose personal information in the course of commercial activities. As the Data Protection Report notes:

The revised PIPEDA will specifically permit the sharing of personal information without individuals’ consent in the context of due diligence for business transactions, such as M&A, a partial sale of assets or transfer upon insolvency, provided certain conditions are met by the parties to the transaction. Organizations engaging in these types of business transactions will need to ensure compliance with the statutory requirements that resemble those found in Alberta’s privacy legislation. For example, under the PIPEDA amendments, only information necessary to the transaction may be communicated pursuant to an undertaking to protect the information with appropriate security measures and to use it solely for purposes related to the transaction. If the transaction does not proceed, the information must be returned. Otherwise, it may only be used after completion of the transaction for the purposes for which it was originally collected and if certain conditions are met, including notice to the individuals concerned.

The updated legislation also gives organizations the ability to disclose personal information to other organizations for the purposes of investigating a breach of an agreement, or a contravention of a Canadian law, or in connection with detecting, preventing or suppressing fraud.

Limits to Ontario Police Record Checks

A proposed bill in Ontario will standardize and limit the kinds of information released in police record checks. Police would no longer be able to disclose mental health information and would only release non-conviction records, such as acquittals, in limited circumstances to potential employers and others in background checks.

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