Under paragraph 26(2)(b) of the Canadian federal Personal Information Protection and Electronic Documents Act (“PIPEDA”), the governor in council can exempt an organization, a class of organizations, an activity or a class of activities from the application of PIPEDA with respect to the collection, use or disclosure of personal information that occurs within a province that has passed legislation deemed to be substantially similar to the PIPEDA. To date, the following provincial privacy laws have been deemed to be substantially similar:
- Alberta’s Personal Information Protection Act;
- BC’s Personal Information Protection Act;
- New Brunswick’s Personal Health Information Privacy and Access Act;
- Ontario’s Personal Health Information Protection Act, and
- Quebec’s An Act respecting the protection of personal information in the private sector.
On October 10, 2012, Exemption Order (SI/2012-72) added the Personal Health Information Act (PHIA), SNL 2008, c P-7.01, of Newfoundland and Labrador to the list of laws that are “substantially similar” to Part 1 of the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”). As of that date, health care organizations subject to PHIA are exempt from PIPEDA.
PHIA, which has been in effect since April 2011, applies to both public- and private-sector custodians, thus PHIA will take the place of both PIPEDA (as it relates to the private sector) and the Access to Information and Protection of Privacy Act (“ATIPPA”) (as it relates to the public sector). It is important to note that PHIA applies to custodians of personal health information, such as health care professionals (physicians, pharmacists, nurses and dentists), Eastern Health, Western Health, Central Health and Labrador-Grenfell Health, provincial government departments when engaged in health care activities and the Public Health Laboratory among others). Organizations that do not fall within the definition of a custodian continue to be subject under either PIPEDA or ATIPPA. PIPEDA continues to apply to personal information collected, used or disclosed by federal works, undertakings and businesses and collected, used or disclosed across provincial borders or federal borders in the course of business.
PHIA’s definition of “personal health information” is broad and includes identifiable information about physical and mental health, family history, organ donation, insurance coverage and prescriptions, both in oral and recorded form. Generally, the default position is that consent is required for the collection, use and disclosure of personal health information. Consent must be knowledgeable, relate to the information and not be obtained through deception or coercion; it may be either express or implied, subject to certain conditions. Consent may be withdrawn but does not prevent custodians from using personal health information where authorized without consent by PHIA.
PHIA provides for fines of not more than $10,000 or imprisonment not exceeding 6 months (or both) for any custodian who collects, uses or discloses personal health information contrary to the Act, fails to protect personal health information in a secure manner as required or discloses personal health information with the intent to obtain a monetary or other material benefit or to confer such a benefit on another person.