Note: The following are my speaking notes for my appearance on February 23, 2026 before the House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI). ETHI is currently engaged in a review of PIPEDA. My colleague Dr. Florian Martin-Bariteau also appeared before the same committee. His remarks are found here.
Thank you for the invitation to meet with you today and to contribute to your study of the Personal Information Protection and Electronic Documents Act. I am a professor at the University of Ottawa, Faculty of Law, where I hold the Canada Research Chair in Information Law. I am appearing in my personal capacity.
We are facing a crisis of legitimacy when it comes to personal data protection in Canada. Every day there are new stories about data hacks and breaches, and about the surreptitious collection of personal information by devices in our homes and on our persons that are linked to the Internet of Things. There are stories about how big data profiling impacts the ability of individuals to get health insurance, obtain credit or find employment. There are also concerns about the extent to which state authorities access our personal information in the hands of private sector companies. PIPEDA, as it currently stands, is inadequate to meet these challenges
My comments are organized around the theme of transparency. Transparency is fundamentally important to data protection and it has always played an important role under PIPEDA. At a fundamental level, transparency means openness and accessibility. In the data protection context it means requiring organizations to be transparent about the collection, use and disclosure of personal information; and it means the Commissioner must be transparent about his oversight functions under the Act. I will also argue that it means that state actors (including law enforcement and national security organizations) must be more transparent about their access to and use of the vast stores of personal information in the hands of private sector organizations.
Under PIPEDA, transparency is at the heart of the consent-based data protection scheme. Transparency is central to the requirement for companies to make their privacy policies available to consumers, and to obtain consumer consent to collection, use or disclosure of personal information. Yet this type of transparency has come under significant pressure and has been substantially undermined by technological change on the one hand, and by piecemeal legislative amendment on the other.
The volume of information that is collected through our digital, mobile and online interactions is enormous, and its actual and potential uses are limitless. The Internet of Things means that more and more, the devices we have on our person and in our homes are collecting and transmitting information. They may even do so without our awareness, and often on a continuous basis. The result is that there are fewer clear and well-defined points or moments at which data collection takes place, making it difficult to say that notice has been provided and consent obtained in any meaningful way. In addition, the number of daily interactions and activities that involve data collection have multiplied beyond the point at which we are capable of reading and assessing each individual privacy policy. And, even if we did have the time, privacy policies are often so long, complex, and vague that reading them does not provide much of an idea of what is being collected and shared, with or by whom, or for what purposes.
In this context consent has become a joke, although unfortunately the joke is largely on the consumer. The only parties capable of saying that our current consent-based model still works are those that benefit from consumer resignation in the face of this ubiquitous data harvesting.
The Privacy Commissioner’s recent consultation process on consent identifies a number of possible strategies to address the failure of the current system. There is no quick or easy fix – no slight changing of wording that will address the problems around consent. This means that on the one hand, there need to be major changes in how organizations achieve meaningful transparency about their data collection, use and disclosure practices. There must also be a new approach to compliance that gives considerably more oversight and enforcement powers to the Commissioner. The two changes are inextricably linked. The broader public protection mandate of the Commissioner requires that he have necessary powers to take action in the public interest. The technological context in which we now find ourselves is so profoundly different from what it was when this legislation was enacted in 2001 that to talk of only minor adjustments to the legislation ignores the transformative impacts of big data and the Internet of Things.
A major reworking of PIPEDA may in any event be well be overdue, and it might have important benefits that go beyond addressing the problems with consent. I note that if one was asked to draft a statute as a performance art piece that evokes the problems with incomprehensible, convoluted and contorted privacy policies and their effective lack of transparency, then PIPEDA would be that statute. As unpopular as it might seem to suggest that it is time to redraft the legislation so that it no longer reads like the worst of all privacy policies, this is one thing that the committee should consider.
I make this recommendation in a context in which all those who collect, use or disclose personal information in the course of commercial activity – including a vast number of small businesses with limited access to experienced legal counsel – are expected to comply with the statute. In addition, the public ideally should have a fighting chance of reading this statute and understanding what it means in terms of the protection of their personal information and their rights of recourse. As it is currently drafted PIPEDA is a convoluted mishmash in which the normative principles are not found in the law itself, but are rather tacked on in a Schedule. To make matters worse, the meaning of some of the words in the Schedule, as well as the principles contained therein are modified by the statute so that it is not possible to fully understand rules and exceptions without engaging in a complex connect-the-dots exercise. After a series of piecemeal amendments, PIPEDA now consists in large part of a growing list of exceptions to the rules around collection, use or disclosure without consent. While the OPC has worked hard to make the legal principles in PIPEDA accessible to businesses and to individuals, the law itself is not accessible In a recent case involving an unrepresented applicant, Justice Roy of the Federal Court expressed the opinion that for a party to “misunderstand the scope of the Act is hardly surprising.”
I have already mentioned the piecemeal amendments to PIPEDA over the years as well as concerns over transparency. In this respect it is important to note that the statute has been amended so as to increase the number of exceptions to the consent that would otherwise be required for the collection, use or disclosure of personal information. For example, paragraphs 7(3)(d.1) and (d.2) were added in 2015, and permit organizations to share personal information between themselves for the purposes of investigating breaches of an agreement or actual or anticipated contraventions of the laws of Canada or a province, or to detect or supress fraud. These are important objectives, but I note that no transparency requirements were created in relation to these rather significant powers to share personal information without knowledge or consent. In particular, there is no requirement to notify the Commissioner of such sharing. The scope of these exceptions creates a significant transparency gap that undermines personal information protection. This should be fixed.
PIPEDA also contains exceptions that allow organizations to share personal information with government actors for law enforcement or national security purposes without notice or consent of the individual. These exceptions also lack transparency safeguards. Given the huge volume of highly detailed personal information, including location information that is now collected by private sector organizations, the lack of mandatory transparency requirements is a glaring privacy problem. The Department of Industry, Science and Economic Development has created a set of voluntary transparency guidelines for organizations that choose to disclose the number of requests they receive and how they deal with them. It is time for there to be mandatory transparency obligations around such disclosures, whether it be public reporting or reporting to the Commissioner, or a combination of both. It should also be by both public and private sector actors.
Another major change that is needed to enable PIPEDA to meet the contemporary data protection challenges relates to the powers of the Commissioner. When PIPEDA was enacted in 2001 it represented a fundamental change in how companies were to go about collecting, using and disclosing personal information. This major change was made with great delicacy; PIPEDA reflected an ombuds model which allowed for a light touch with an emphasis on facilitating and cajoling compliance rather than imposing and enforcing it. Sixteen years later and with exabytes of personal data under the proverbial bridge, it is past time for the Commissioner to be given a new set of tools in order to ensure an adequate level of protection for personal information in Canada.
First, the Commissioner should have the authority to impose fines on organizations in circumstances where there has been substantial or systemic non-compliance with privacy obligations. Properly calibrated, such fines can have an important deterrent effect, which is currently absent in PIPEDA. They also represent transparent moments of accountability that are important in maintaining public confidence in the data protection regime.
The toolbox should also include the power for the Commissioner to issue binding orders. I am sure that you are well aware that the Commissioners in Quebec, Alberta and British Columbia already have such powers. As it stands, the only route under PIPEDA to a binding order runs through the Federal Court, and then only after a complaint has passed through the Commissioner’s internal process. This is an overly long and complex route to an enforceable order, and it requires an investment of time and resources that places an unfair burden on individuals.
I note as well that PIPEDA currently does not provide any guidance as to damage awards. The Federal Court has been extremely conservative in damage awards for breaches of PIPEDA, and the amounts awarded are unlikely to have any deterrent effect other than to deter individuals who struggle to defend their personal privacy. Some attention should be paid to establishing parameters for non-pecuniary damages under PIPEDA. At the very least, these will assist unrepresented litigants in understanding the limits of any recourse available to them.
Thank you for your attention, and I welcome any questions.
