Interview with the Chair of the Privacy Law Section of the Canadian Bar Association

March 2004

Terry McQuay, Nymity's President, recently spoke with Priscilla Platt about the National Privacy Law Section of the Canadian Bar Association (CBA) of which she is one of its founders and was elected its first Chair in 2003. She is also one of the founders and Co-Chair of the Ontario Bar Association's Privacy Law Section since 2001. Ms. Platt is Associate Director and Practice Group Leader for the Access and Privacy Law Practice Group of the Ontario Management Board Secretariat's Legal Services Branch. Ms Platt is the co-author of "Privacy Law in the Private Sector-An Annotation of the Legislation in Canada", published by Canada Law Book in 2002.

Nymity: Please explain what the National Privacy Law Section of the CBA does?

Platt: The CBA is a national organization composed of lawyers. The CBA has broad membership across Canada and in most areas of the law; members receive information and may also volunteer through an election process at the organizational and planning levels. The CBA provides continuing legal education to lawyers through conferences, newsletters and other publications and also conducts advocacy in relation to significant legal issues. The CBA has many sections reflecting areas of specialization of the practising Bar. One of the new sections is Privacy Law and its mandate is to educate lawyers about this burgeoning field as well as to conduct advocacy in areas of significance. Provincial and Territorial jurisdictions are also encouraged to develop Privacy Law Sections and to the extent that they do, their Chairs are automatically members of the Executive of the National Privacy Law Section. Currently several other jurisdictions have gone forward to create Privacy Law Sections, including Ontario.

Nymity: How many members belong to the National Privacy Law Section, and how much growth has there been in the last couple years?

Platt: We have over 1,000 members and since the Section was only started in 2003 much of the growth has been recent.

Nymity: What have been the top privacy issues and challenges as presented to National Privacy Law Section?

Platt: The biggest issue is to appreciate the breadth of the area. For lawyers who have not specialized in this area, the idea that every transactions is either a collection, use or disclosure is difficult to grasp. As well, the right of access is not well understood and merits more attention.

Nymity: Where have the National Privacy Law Section training programs been focused?

Platt: At the national level, because planning has to be so far in advance, we have focused mainly on having sessions at the various conferences that were already in place. We have addressed personal health information as well as cross border issues.

Nymity: Where do you see the challenges in the future?

Platt: The impact of technology on privacy is very significant and relevant to this is the ability of organizations to protect privacy once personal information is sent elsewhere or to other jurisdictions.

Nymity: What impact are the private sector Privacy Acts having on workplace privacy?

Platt: Since PIPEDA only applies to federally regulated employers, its impact is limited. However, where the other jurisdictions have gone forward they have dealt with the employment context. The impact will be significant for employers and employees will have more rights. In particular, employees to whom this legislation applies will have an articulated right of access, which is new.

Nymity: Where have you seen PIPEDA affect the public sector?

Platt: For governments, the impact is primarily in the sale of data and in outsourcing. Other public sector entities may be more broadly affected when they engage in commercial activities.

Nymity: You stated that privacy laws are really ethics legislation; please explain.

Platt: Back in the 1970s, privacy law was part of human rights legislation. While the modern articulation is in relation to fair information practices, privacy remains a fundamental human right and has been discussed in that way by the Supreme Court of Canada. Indeed, the values of privacy are reflected in the Canadian Charter of Rights and Freedoms.

Nymity: You have stated that the private sector can draw upon the experiences in the public sector. Where would we start?

Platt: The public sector has had regulation in this area at the federal government level for about two decades and in many provincial jurisdictions, such as Ontario, for over a decade. There is as a consequence a wealth of experience in implementing these laws, in recognizing the implications of privacy laws, in training staff and in responding to access requests, to name just a few areas. As well, the same Commissions that oversee the public sector do so in relation to the private sector and therefore the issues are likely to be handled in a similar fashion. Much of the case law that informs the interpretation of privacy legislation is as applicable in the private sector as it is in the public sector.

Nymity: Please explain the Quebec constitutional challenge and the possible outcomes.

Platt: As I understand it, the Quebec government has asked the courts to decide whether the federal government has the authority to pass a law, PIPEDA, that imposes national privacy standards on organizations operating within a province. The federal government relies on its constitutional 'trade and commerce' power, while Quebec would likely argue that PIPEDA's impact goes well beyond what the federal government may regulate under that power. This is a very significant event, the ultimate determination of which will likely be by the Supreme Court of Canada.

Nymity: The book, "Privacy Law in the Private Sector-An Annotation of the Legislation in Canada", how will it help a private sector organization?

Platt: The Annotation catalogues and discusses the decisions that have been made in this area and reviews the legislation that is in place across the country. It also includes references to relevant public sector case law. The book will be of interest to organizations and counsel who want to understand how particular sections of the legislation have been interpreted.

Nymity: When should a private sector organization retain the advice of a lawyer?

Platt: Each organization needs to decide for itself what level of advice it requires. Counsel with expertise in this area can be particularly useful in addressing investigations and in anticipating vulnerabilities.