Teresa Scassa - Blog

The Province of Manitoba has three bills currently before the legislature that address AI-related issues.

The first of these is Bill 2, which proposes amendments to the province’s Non-Consensual Distribution of Intimate Images Act. Unlike some of its provincial counterparts, the original law (dating from 2015) already applies to both real and fake intimate images. The amendments will change the definition of an intimate image to include images in which a person is nearly nude. It will also include personal intimate images in which the individual is not identifiable. This will address circumstances, for example, where a former partner is threatening to disclose an intimate image in which a person is not readily identifiable, but where she knows that it depicts her. The bill also creates a new tort of threatening to disclose an intimate image. It makes explicit the power of the courts to issue orders against internet intermediaries. Interestingly, the bill will also limit the liability of internet intermediaries that have “taken reasonable steps to address unlawful distribution of intimate images” in the use of their services (s. 15.1(1)).

Bill 49, The Business Practices Amendment Act, proposes amendments to the provincial statute that sets out unfair business practices. The proposed changes will address the use of algorithms and big data to generate dynamic prices that are different for different consumers. Specifically, the following two practices will be added as unfair practices:

(r.1) where the price of a part of the consumer transaction is displayed by way of an electronic shelf labelling system, demanding a higher price from the consumer at the point of sale due to personalized algorithmic pricing in respect of that consumer;

and

(v) in the case of an online retailer or online distributor, the use of personalized algorithmic pricing to increase the price of the goods demanded from the consumer.

The bill defines personalized algorithmic pricing as occurring where personal data about the consumer are “collected, analyzed or processed with or without the consumer’s consent, knowledge or involvement”. This is important as it makes any consent to use of personal information in a long and obscure privacy policy irrelevant to the issue of the fairness of the business practice. The types of personal data that might be used in this way form a lengthy list that includes browsing or purchasing history, spending patterns, inferences about the consumer’s willingness to enter into the transaction, demographics, socio-economic status, credit history, location, medical history, and so on.

This important measure comes at a time when price discrimination practices are on the rise (see research from Pascale Chapdelaine here and here), and is typically invisible to the consumer. After all, if you are shopping online and are offered goods at a particular price, it would require considerable effort to determine whether someone else is being offered the same goods at a different price. This amendment is important. That said, it does not address the potential for dynamic surge pricing. Recent reporting on patents obtained by Walmart suggests that the company may be looking to use dynamic pricing on digital price displays on stores shelves to adjust prices based on demand in real time. The capacity to adjust prices based on who is shopping – and when – will have significant implications for consumers and it will be important for consumer-oriented legislation to anticipate and address these issues.

Last but not least, Bill 51, the Public Sector Artificial Intelligence and Cybersecurity Governance Act, is highly reminiscent of Ontario’s Enhancing Digital Security and Trust Act (EDSTA), which was enacted in 2024. Like the EDSTA, Manitoba’s Bill 51 creates a legislative framework for the governance of public sector artificial intelligence (AI) on the one hand, and for cybersecurity measures for the public sector on the other. Like the EDSTA, this is a ‘plug and play’ framework. The statute itself, if enacted, will require prescribed public sector entities to comply with obligations that are established in the regulations. The goal is to have a flexible framework that can adapt to changing technologies and circumstances through amendments to regulations and/or standards, that will be achieved more quickly than legislative amendments. The catch is that without regulations, the law is nothing more than words on a page. Ontario’s EDSTA, which took effect over a year ago on January 29, 2025, has resulted in that most flexible of regulatory frameworks for public sector AI known as “none”. Although regulations have been proposed for the portions of the EDSTA dealing with Cyber Security and Digital Technology Affecting Individuals Under 18, no regulations are yet in sight for AI in the public sector. Hopefully, Manitoba’s Bill 51 will not serve as an empty policy placeholder.