Quick Hits

• Provincial laws apply: Certain provinces in Canada and federally regulated businesses have specific laws governing data transfers abroad.
• Transparency is key: Employers may want to inform employees about how and where their data is transferred to comply with applicable legislation.
• Security safeguards: Data transfers may require agreements to ensure compliance with applicable legislation and security standards in Canada.

In Canada, several privacy laws govern the handling of personal information, including the Act Respecting the Protection of Personal Information in the Private Sector in Quebec, the Personal Information Protection Act (PIPA) in British Columbia, and Alberta’s Personal Information Protection Act (PIPA). Federally regulated organizations are subject to the Personal Information Protection and Electronic Documents Act (PIPEDA). These laws emphasize key principles, such as transparency and security, which are relevant when transferring employee data outside of Canada.

Transferring personal information internationally is permissible within the framework of these laws. Organizations may implement measures to ensure compliance with these principles and mitigate the risks associated with such transfers.

In Quebec, Section 17 of the Act Respecting the Protection of Personal Information in the Private Sector (Quebec Privacy Act) addresses data transfers outside the province. Employers transferring personal information out of Quebec may be subject to this law. The law requires that organizations transferring data out of Quebec evaluate the sensitivity of the information, the jurisdiction receiving the data, and the measures in place to protect it. This evaluation may include conducting a Privacy Impact Assessment (PIA) and a Transfer Impact Assessment (TIA). The assessments provide an opportunity to analyze how personal information will be used, identify potential risks, and confirm whether the legal protections of the receiving jurisdiction align with Quebec’s privacy standards.

British Columbia’s and Alberta’s privacy laws, through their respective PIPA statutes, encourage transparency in data transfers. Employers can notify employees about the purpose of a transfer, the destination of the data, and how the data will be protected. For example, Section 34 of British Columbia’s PIPA, as well as Section 34 of Alberta’s PIPA, outlines the requirement to ensure reasonable safeguards are in place to protect personal information.

PIPEDA, which applies to federally regulated employers, also includes obligations related to transparency and accountability. Employers transferring data outside Canada must inform employees about the purpose of the transfer, the risks involved, and the measures in place to ensure data security.

Practical Steps for Employers

When transferring data out of Quebec, Alberta, British Columbia, or a federally regulated business, employers may want to take these steps into consideration:

• Developing a Comprehensive Privacy Policy:
  Employers can think about outlining how data is collected, stored, and transferred. Employers may want to include specific references to cross-border transfers, the jurisdictions involved, and the safeguards in place in their privacy policies.
• Conducting Privacy Impact and Transfer Impact Assessments:
  Particularly in Quebec, these assessments are mandatory under Section 17 of the Quebec Privacy Act. Employers may want to evaluate the risks, the sensitivity of the data, and the protections offered by the receiving jurisdiction.
• Securing Robust Data Processing Agreements (DPAs) With Service Providers:
  Employers may want to enter into contracts with service providers that include clauses requiring compliance with Canadian privacy standards, breach notification protocols, and equivalent security measures.
• Understanding the Jurisdiction:
  Employers may want to research the legal framework of the receiving country and mitigate risks accordingly. For instance, if transferring data to the United States, consider the impact of federal laws on data access.
• Training Employees:
  Employers can work to equip employees with the knowledge to identify potential privacy risks. It is helpful if employees understand when to involve the data privacy officer and when to initiate a PIA or TIA.

While transferring data to jurisdictions such as the United States is possible, employers will want to consider implementing safeguards to comply with provincial and federal privacy laws in Canada. By prioritizing transparency, conducting thorough assessments, and securing robust agreements with service providers, employers can work toward ensuring that data transfers respect employee privacy and maintain compliance.