Teresa Scassa - Blog

The Ontario and British Columbia Information and Privacy Commissioners each released new AI medical scribes guidance on Privacy Day (January 28, 2026). This means that along with Alberta and Saskatchewan, a total for four provincial information and privacy commissioners have now issued similar guidance. BC’s guidance is aimed at health care practitioners running their own practices and governed by the province’s Personal Information Protection Act. It does not extend to health authorities and hospitals that fall under the province’s Freedom of Information and Protection of Privacy Act. Ontario’s guidance is for both public institutions and physicians in private practice who are governed by the Personal Health Information Protection Act.

This flurry of guidance on AI Scribes shows how privacy regulators are responding to the very rapid adoption in the Canadian health sector of an AI-tool that raises sometimes complicated privacy issues with a broad public impact.

At its most basic level, an AI medical scribe is a tool that records a doctor’s interaction with their patient. The recording is then transcribed by the scribe, and a summary is generated that can be cut and pasted by the doctor into the patient’s electronic medical record (EMR). The development and adoption of AI scribes has been rapid, in part because physicians have been struggling with both significant administrative burdens as well as burnout. This is particularly acute in the primary care sector. AI scribes offer the promise of better patient care (doctors are more focused on the patient as they are freed up from notetaking during appointments), as well as potentially significantly reduced time spent on administrative work.

AI medical scribes raise a number of different privacy issues. These can include issues relating to the scribe tool itself (for example, how good is the data security of the scribe company? What kind of personal health information (PHI) is stored, where, and for how long? Are secondary uses made of de-identified PHI? Is the scribe company’s definition of de-identification consistent with the relevant provincial health information legislation?) They may also include issues around how the technology is adopted and implemented by the physician (including, for example” whether the physician retains the full transcription as well as the chart summary and for how long; what data security measures are in place within the physician’s practice; and how consent is obtained from patients to the use of this tool). As the BC IPC’s guidance notes, “What distinguishes an AI scribe’s collection of personal information from traditional notetaking with a pen and notepad is that there are many processes taking place with an AI scribe that are more complex, potentially more privacy invasive, and less obvious to the average person” (at 5).

AI scribes raise issues other than privacy that touch on patient data. In their guidance, Ontario’s IPC notes the human rights considerations raised by AI scribes and refers to its recent AI Principles issued jointly with the Ontario Human Rights Commission (which I have written about here). The quality of AI technologies depends upon the quality of their training data. Where training data does not properly represent the populations impacted by the tool, there can be bias and discrimination. Concerns exist, for example, about how well AI scribes will function for people (or physicians) with accents, or for those with speech impaired by disease or disability. Certainly, the accuracy of personal health information that is recorded by the physician is a data protection issue; it is also a quality of health care issue. There are concerns that busy physicians may develop automation bias, increasingly trusting the scribe tool and reducing time spent on reviewing and correcting summaries – potentially leading to errors in the patient’s medical record.

AI scribes are being adopted by individual physicians, but they are also adopted and used within institutions – either with the engagement of the institution, or as a form of ‘shadow use’. A recent response to a breach by Ontario’s IPC relating to the use of a general-purpose AI scribe illustrates how complex the privacy issues may be in such as case (I have written about this incident here). In that case, the scribe tool ‘attended’ nephrology rounds at a hospital, transcribed the meeting, sent a summary to all 65 people on the mailing list for the meeting and provided a link to the full transcript. The summary and transcript contained the sensitive personal information of the patients seen on those rounds. Complicating the matter was the fact that the physician whose scribe attended the meeting was no longer even at the hospital.

Privacy commissioners are not the only ones who have stepped up to provide guidance and support to physicians in the choice of AI scribe tools. Ontario MD, for example, conducted an evaluation of AI medical scribes, and is assisting in assessing and recommending scribing tools that are considered safe and compliant with Ontario law.

Of course, scribe technologies are not standing still. It is anticipated that these tools will evolve to include suggestions for physicians for diagnosis or treatment plans, raising new and complex issues that will extend beyond privacy law. As the BC guidance notes, some of these tools are already being used to “generate referral letters, patient handouts, and physician reminders for ordering lab work and writing prescriptions for medication” (at 2). Further, this is a volatile area where scribe tools are likely to be acquired by EMR companies to integrate with their offerings, reducing the number of companies and changing the profile of the tools. The mutable tools and volatile context might suggest that guidance is premature; but the AI era is presenting novel regulatory challenges, and this is an example of guidance designed not to consolidate and structure rules and approaches that have emerged over time; but rather to reduce risk and harm in a rapidly evolving context. Regulator guidance may serve other goals here as well, as it signals to developers and to EMR companies those design features which will be important for legal compliance. Both the BC and Ontario guidance caution that function creep will require those who adopt and use these technologies to be alert to potential new issues that may arise as the adopted tools’ functionalities change over time.

Note: Daniel Kim and I have written a paper on the privacy and other risks related to AI medical scribes which is forthcoming in the TMU Law Review. A pre-print version can be found here: Scassa, Teresa and Kim, Daniel, AI Medical Scribes: Addressing Privacy and AI Risks with an Emergent Solution to Primary Care Challenges (January 07, 2025). (2025) 3 TMU Law Review, Available at SSRN: https://ssrn.com/abstract=5086289

Ontario’s Office of the Information and Privacy Commissioner (IPC) and Human Rights Commission (OHRC) have jointly released a document titled Principles for the Responsible Use of Artificial Intelligence.

Notably, this is the second collaboration of these two institutions on AI governance. Their first was a joint statement on the use of AI technologies in 2023, which urged the Ontario government to “develop and implement effective guardrails on the public sector’s use of AI technologies”. This new initiative, oriented towards “the Ontario public sector and the broader public sector” (at p. 1), is interesting because it deepens the cooperation between the IPC and the OHRC in relation to a rapidly evolving technology that is increasingly used in the public sector. It also fills a governance gap left by the province’s delay in developing its public sector AI regulatory framework.

In 2024, the Ontario government enacted the Enhancing Digital Security and Trust Act, 2024 (EDSTA), which contains a series of provisions addressing the use of AI in the broader public sector (which includes hospitals and universities). It also issued the Responsible Use of Artificial Intelligence Directive which sets basic rules and principles for Ontario ministries and provincial agencies. The Directive is currently in force and is built around principles similar to those set out by the IPC and OHRC. It outlines a set of obligations for ministries and agencies that adopt and use AI systems. These include transparency, risk management, risk mitigation, and documentation requirements. The EDSTA, which would have a potentially broader application, creates a framework for transparency, accountability, and risk management obligations, but the actual requirements have been left to regulations. Those regulations will also determine to whom any obligations will apply. Although the EDSTA can apply to all actors within the public sector, broadly defined, its obligations can be tailored by regulations to specific departments or agencies, and can include or exclude universities and hospitals. There has been no obvious movement on the drafting of the regulations needed to breathe life into EDSTA’s AI provisions

It is clear that AI systems will have both privacy and human rights implications, and that both the IPC and the OHRC will have to deal with complaints about such systems in relation to matters within their respective jurisdictions. As the Commissioners put it, the principles “will ground our assessment of organizations’ adoption of AI systems consistent with privacy and human rights obligations.” (at p. 1) The document clarifies what the IPC and OHRC expect from institutions. For example, conforming to the ‘Valid and reliable” principle will require compliance with independent testing standards and objective evidence will be required to demonstrate that systems “fulfil the intended requirements for a specified use or application”. (at p. 3) The safety principle also requires demonstrable cybersecurity protection and safeguards for privacy and human rights. The Commissioners also expect institutions to provide opportunities for access and correction of individuals’ personal data both used in and generated by AI systems. The “Human rights affirming” principle includes a caution that public institutions “should avoid the uniform use of AI systems with diverse groups”, since such practices could lead to adverse effects discrimination. The Commissioners also caution against uses of systems that may “unduly target participants in public or social movements, or subject marginalized communities to excessive surveillance that impedes their ability to freely associate with one another.” (at p. 6)

The Commissioners’ “Transparency” principle requires that the use by the public sector of AI be visible. The IPC’s mandate covers both access to information and privacy. The Principles state that the documentation required for the “public account” of AI use “may include privacy impact assessments, algorithmic impact assessments, or other relevant materials.” (at p. 6) There must also be transparency regarding “the sources of any personal data collected and used to train or operate the system, the intended purposes of the system, how it is being used, and the ways in which its outputs may affect individuals or communities.” (at p. 6)

The Principles also require that systems used in the public sector be understandable and explainable. The accountability principle requires public sector institutions to document design and application choices and to be prepared to explain how the system works to an oversight body. They should also establish mechanisms to receive and respond to complaints and concerns. The Principles call for whistleblower protections to support reporting of non-compliant systems.

The joint nature of the Principles highlights how issues relating to AI do not easily fall within the sole jurisdiction of any one regulator. It also highlights that the dependence of AI systems on data – often personal data or de-identified personal data – carries with it implications both for privacy and human rights.

That the IPC and OHRC will have to deal with complaints and investigations that touch on AI issues is indisputable. In fact, the IPC has already conducted formal and informal investigations that touch on AI-enabled remote proctoring, AI scribes, and vending machines on university campuses that incorporate face-detection technologies. The Principles offer important insights into how these two oversight bodies see privacy and human rights intersecting with the adoption and use of AI technologies, and what organizations should be doing to ensure that the systems they procure, adopt and deploy are legally compliant.

A recent communication from the Office of the Information and Privacy Commissioner of Ontario (IPC) highlights how rapidly evolving and widely available artificial intelligence-enabled tools can pose significant privacy risks for organizations.

The communication in question was a letter to an unnamed hospital (“the hospital”) which had reported a data breach to the IPC. The letter reviewed the breach, set out a series of recommendations for the hospital, and requested an update on the hospital’s response to the recommendations by late January 2026. Although the breach occurred in the health sector, with its strict privacy laws, lessons extend more broadly to other sectors as well.

The breach involved the use of a transcription tool of a kind now regularly in use by many physicians to document physician-patient interactions. AI Scribe tools record and transcribe physician-patient interactions and generate summaries suitable for inclusion in electronic medical records. These functions are designed to relieve physicians of significant note-taking and administrative burdens. Although there are many task-specific AI Scribe tools now commercially available, in this case, the tool used was the commonly available Otter.ai transcription tool designed for use in a broad range of contexts.

This breach was complicated by the fact that the Otter.ai tool acted as an AI agent of the physician who had downloaded it. AI agents can perform a series of tasks with a certain level of autonomy. In this case, the tool can be integrated with different communications platforms, as well as with the user’s digital calendar (such as Outlook). Essentially, Otter.ai can scan a user’s digital calendar and join scheduled meetings. The tool then transcribes and summarizes the meeting. It can also share both the summary and the transcription with other meeting participants – all without direct user intervention.

The physician had downloaded Otter.ai and provided it with access to his calendar over a year after he left the hospital that reported the breach. Because he had he used his personal email, rather than his hospital email, for internal communications while at that hospital, his departure in 2023 and the deactivation of his hospital email account had not led to the removal of his personal email from meeting invitation lists. When he downloaded Otter.ai in September 2024 and gave it access to his digital calendar, he was still receiving invitations from the hospital to hepatology rounds. Although the physician did not attend these rounds following his departure, his AI agent did. It attended a September 2024 meeting, produced a transcript and meeting summary and emailed the summary with a link to the full transcript to all 65 individuals on the meeting invitation. The breach was presumably reported to the hospital by one or more of the email recipients. Seven patients had been seen during the hepatology rounds, and the transcript and summary contained their sensitive personal health information.

The hospital took immediate action to address the breach. It cancelled the digital invitation to the physician and contacted all recipients of the summary and transcript asking them to promptly delete all copies of the rogue email and attachments. It also sent a notice to all staff reminding them that they are not permitted to use non-approved tools in association with their hospital credentials and/or devices. It contacted the physician who had used Otter.ai and ensured that he removed all digital connections with the hospital. They also requested that he contact Otter.ai to request that all information related to the meeting be deleted from their systems. Patients affected by the breach were also notified by the hospital. To prevent future breaches, the hospital created firewalls to block on-site access to non-approved scribing tools, updated its training materials to address the use of unapproved tools, and revised its Appropriate Use of Information and Information Technology policy. The revised policy emphasizes the importance of using only hospital approved IT resources. It also advises regular review of participant lists for meetings to ensure that AI tools or automated agents are not included.

In addition to these steps, the IPC made further recommendations, including that the hospital itself contact Otter.ai to request the deletion of any patient information that it may have retained. Twelve of the sixty-five email recipients had not confirmed that they had deleted the emails, and the IPC recommended that the hospital follow up to ensure this had been done. Updates to the hospital’s breach protocol were also recommended as well as changes to offboarding procedures to ensure that access to hospital information systems is “immediately revoked” when personnel leave the hospital. The OIPC also recommended the use of mandatory meeting lobbies for all virtual meetings so that unauthorized AI agents are not permitted access to meetings.

This incident highlights some of the important challenges faced by hospitals – as well as by many other organizations – with the development of widely available generative and agentic AI tools. Where sophisticated and powerful tools in the workplace were once more easily controlled by the employer, it is increasingly the case that employees have independent access to such tools. Shadow AI usage is a growing concern for organizations, as it may pose unexpected – and even undetected – risks for privacy and confidentiality of information. Rapidly evolving agentic AI tools – with their capacity to act independently may also create challenges, particularly where employees are not fully familiar with their full range of functions or default settings.

Medical associations and privacy commissioners’ offices have begun developing guidance for the use of AI Scribes in medical practice (see, e.g., guidance from Saskatchewan and Alberta OIPCs). Ontario MD has even gone so far as to develop a list of approved AI scribe vendors – ones that they consider meet privacy and security standards. However, the tool adopted in this case was designed for all contexts and is available in both free and paid versions, which only serves to highlight the risks and challenges in this area. The widespread availability of such tools poses important governance issues for privacy and security conscious organizations. Even where an organization may subscribe to a particular tool that has been customized to its own privacy and security standards, employees still have access to many other tools that they might already use in other contexts. The risk that an employee will simply decide to use a tool with which they are already familiar and with which they are comfortable must be considered.

More generic transcription tools may also pose other risks in the medical context, since they are not specifically trained or designed for a particular context such as health care. For example, they may be less adept at dealing with medical terminology, prescription drug names, or other terms of art. This could increase the incidence of errors in any transcriptions or summaries.

Risks that data collected through unauthorized tools may be used to train AI systems also underscores the potential consequences for privacy and confidentiality. Under Ontario’s Personal Health Information Protection Act (PHIPA), a health care custodian is not authorized to share personal health information with third parties without the patient’s express consent to do so. Using health-care related transcription or voice recordings to train third party AI systems without this express consent is not permitted. Although some services indicate that they only use “de-identified” information for system training, the term “de-identified” may not be defined in the same way as in PHIPA. For example, stripping information of all direct identifiers (names, ID numbers, etc.) does not count as de-identification under PHIPA which requires that in addition to the removal of all direct identifiers, it is also necessary to remove information “for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify the individual”.

This incident highlights the vulnerability of sensitive personal information in a context in which a proliferation of novel (and evolving) technological tools for personal and professional use is rampant. Organizations must act quickly to assess and mitigate risks, and this will require regular engagement with and training of personnel.

Note: A pre-print version of my research paper with Daniel Kim on AI Scribes can be found here.

Canada’s Privacy Commissioner has released a set of findings that recognize a right to be forgotten (RTBF) under the Personal Information Protection and Electronic Documents Act (PIPEDA). The complainant’s long legal journey began in 2017 when they complained that a search of their name in Google’s search engine returned news articles from many years earlier regarding an arrest and criminal charges relating to having sexual activity without disclosing their status as being HIV positive. Although these reports were accurate at the time they were published, the charges were stayed shortly afterwards, because the complainant posed no danger to public health. Charging guidelines for the offence in question indicated that no charges should be laid where there is no realistic possibility that HIV could be transmitted. The search results contain none of that information. Instead, they publicly disclose the HIV status of the complainant, and they create the impression that their conduct was criminal in nature. As a result of the linking of their name to these search results, the complainant experienced – and continues to experience – negative consequences including social stigma, loss of career opportunities and even physical violence.

Google’s initial response to the complaint was to challenge the jurisdiction of the Privacy Commissioner to investigate the matter under PIPEDA, arguing that PIPEDA did not apply to its search engine functions. The Commissioner referred this issue to the Federal Court, which found that PIPEDA applied. That decision was (unsuccessfully) appealed by Google to the Federal Court of Appeal. When the matter was not appealed further to the Supreme Court of Canada, the Commissioner began his investigation which resulted in the current findings. Google has indicated that it will not comply with the Commissioner’s recommendation to delist the articles so that they do not appear in a search using the complainant’s name. This means that it is likely that an application will be made to Federal Court for a binding order. The matter is therefore not yet resolved.

This post considers three issues. The first relates to the nature and scope of the RTBF in PIPEDA, as found by the Commissioner. The second relates to the Commissioner’s woeful lack of authority when it comes to the enforcement of PIPEDA. Law reform is needed to address this, yet Bill C-27, which would have given greater enforcement powers to the Commissioner, died on the order paper. The government’s intentions with respect to future reform and its timing remain unclear. The third point also addresses PIPEDA reform. I consider the somewhat fragile footing for the Commissioner’s version of the RTBF given how Bill C-27 had proposed to rework PIPEDA’s normative core.

The Right to be Forgotten (RTBF) and PIPEDA

In his findings, the Commissioner grounds the RTBF in an interpretation of s. 5(3) of PIPEDA:

5(3) An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.

This is a core normative provision in PIPEDA. For example, although organizations may collect personal information with the consent of the individual, they cannot do so if the collection is for purposes that a reasonable person would not consider appropriate in the circumstances. This provision (or at least one very similar to it in Alberta’s Personal Information Protection Act), was recently found to place important limits on the scraping of photographs from the public internet by Clearview AI to create a massive facial recognition (FRT) database. Essentially, even though the court found that photographs posted on the internet were publicly available and could be collected and used without consent, they could not be collected and used to create a FRT database because this was not a purpose a reasonable person would consider appropriate in the circumstances.

The RTBF would function much in the same way when it comes to the operations of platform search engines. Those search engines – such as Google’s – collect, use and disclose information found on the public internet when they return search results to users in response to queries. When searches involve individuals, search results may direct users to personal information about that individual. That is acceptable – as long as the information is being collected, used and disclosed for purposes a reasonable person would consider appropriate in the circumstances. In the case of the RTBF, according to the Commissioner, the threshold will be crossed when the privacy harms caused by the disclosure of the personal information in the search results outweigh the public interest in having that information shared through the search function. In order to make that calculation, the Commissioner articulates a set of criteria that can be applied on a case-by-case basis. The criteria include:

a. Whether the individual is a public figure (e.g. a public office holder, a politician, a prominent business person, etc.);

b. Whether the information relates to an individual’s working or professional life as opposed to their private life;

c. Whether the information relates to an adult as opposed to a minor;

d. Whether the information relates to a criminal charge that has resulted in a conviction or where the charges were stayed due to delays in the criminal proceedings;

e. Whether the information is accurate and up to date;

f. Whether the ability to link the information with the individual is relevant and necessary to the public consideration of a matter under current controversy or debate;

g. The length of time that has elapsed since the publication of the information and the request for de-listing. (at para 109)

In this case, the facts were quite compelling, and the Commissioner had no difficulty finding that the information at issue caused great harm to the complainant while providing no real public benefit. This led to the de-listing recommendation – which would mean that a search for the complainant’s name would no longer turn up the harmful and misleading articles – although the content itself would remain on the web and could be arrived at using other search criteria.

The Privacy Commissioner’s ‘Powers’

Unlike his counterparts in other jurisdictions, including the UK, EU member countries, and Quebec, Canada’s Privacy Commissioner lacks suitable enforcement powers. PIPEDA was Canada’s first federal data protection law, and it was designed to gently nudge organizations into compliance. It has been effective up to a point. Many organizations do their best to comply proactively, and the vast majority of complaints are resolved prior to investigation. Those that result in a finding of a breach of PIPEDA contain recommendations to bring the organization into compliance, and in many cases, organizations voluntarily comply with the recommendations. The legislation works – up to a point.

The problem is that the data economy has dramatically evolved since PIPEDA’s enactment. There is a great deal of money to be made from business models that extract large volumes of data that are then monetized in ways that are beyond the comprehension of individuals who have little choice but to consent to obscure practices laid out in complex privacy policies in order to receive services. Where complaint investigations result in recommendations that run up against these extractive business models, the response is increasingly to disregard the recommendations. Although there is still the option for a complainant or the Commissioner to apply to Federal Court for an order, the statutory process set out in PIPEDA requires the Federal Court to hold a hearing de novo. In other words, notwithstanding the outcome of the investigation, the court hears both sides and draws its own conclusions. The Commissioner, despite his expertise, is owed no deference.

In the proposed Consumer Protection Privacy Act (CPPA) that was part of the now defunct Bill C-27, the Commissioner was poised to receive some important new powers, including order-making powers and the ability to recommend the imposition of steep administrative monetary penalties. Admittedly, these new powers came with some clunky constraints that would have put the Commissioner on training wheels in the privacy peloton of his international counterparts. Still, it was a big step beyond the current process of having to ask the Federal Court to redo his work and reach its own conclusions.

Bill C-27, however, died on the order paper with the last federal election. The current government is likely in the process of pep-talking itself into reintroducing a PIPEDA reform bill, but as yet there is no clear timeline for action. Until a new bill is passed, the Commissioner is going to have to make do with his current woefully inadequate enforcement tools.

The Dangers of PIPEDA Reform

Assuming a PIPEDA reform bill will contain enforcement powers better adapted to a data-driven economy, one might be forgiven for thinking that PIPEDA reform will support the nascent RTBF in Canada (assuming that the Federal Court agrees with the Commissioner’s approach). The problem is, however, there could be some uncomfortable surprises in PIPEDA reform. Indeed, this RTBF case offers a good illustration of how tinkering with PIPEDA may unsettle current interpretations of the law – and might do so at the expense of privacy rights.

As noted above, the Commissioner grounded the RTBF on the strong and simple principle at the core of PIPEDA and expressed in s. 5(3), which I repeat here for convenience:

5(3) An organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.

The Federal Court of Appeal has told us that this is a normative standard – in other words, the fact that millions of otherwise reasonable people may have consented to certain terms of service does not on its own make those terms something that a reasonable person would consider appropriate in the circumstances. The terms might be unduly exploitative but leave individuals with little or no choice. The reasonableness inquiry sets a standard for the level of privacy protection an individual should be entitled to in a given set of circumstances.

Notably, Bill C-27 sought to disrupt the simplicity of s. 5(3), replacing it with the following:

12 (1) An organization may collect, use or disclose personal information only in a manner and for purposes that a reasonable person would consider appropriate in the circumstances, whether or not consent is required under this Act.

(2) The following factors must be taken into account in determining whether the manner and purposes referred to in subsection (1) are appropriate:

(a) the sensitivity of the personal information;

(b) whether the purposes represent legitimate business needs of the organization;

(c) the effectiveness of the collection, use or disclosure in meeting the organization’s legitimate business needs;

(d) whether there are less intrusive means of achieving those purposes at a comparable cost and with comparable benefits; and

(e) whether the individual’s loss of privacy is proportionate to the benefits in light of the measures, technical or otherwise, implemented by the organization to mitigate the impacts of the loss of privacy on the individual.

Although s. 12(1) is not so different from s. 5(3), the government saw fit to add a set of criteria in s. 12(2) that would shape any analysis in a way that leans the decision-maker towards accommodating the business needs of the organization over the privacy rights of the individual. Paragraph 12(2)(b) and (c) explicitly require the decision-maker to think about the legitimate business needs of the organization and the effectiveness of the particular collection, use or disclosure in meeting those needs. In an RTBF case, this might mean thinking about how indexing the web and returning search results meets the legitimate business needs of a search engine company and does so effectively. It then asks whether there are “less intrusive means of achieving those purposes at a comparable cost and with comparable benefits”. This too focuses on the organization. Not only is this criterion heavily weighted in favour of business in terms of its substance – less intrusive means should be of comparable cost – the issues it raises are ones about which an individual challenging the practice would have great difficulty producing evidence. While the Commissioner has greater resources, these are still limited. The fifth criterion returns us to the issue of privacy, but it asks whether “the individual’s loss of privacy is proportionate to the benefits [to the organization] in light of the measures, technical or otherwise, implemented by the organization to mitigate the impacts of the loss of privacy on the individual”. The criteria in s. 12(2) fall over themselves to nudge a decision-maker towards finding privacy-invasive practices to be “for purposes that a reasonable person would consider appropriate in the circumstances” – not because a reasonable person would find them appropriate in light of the human right to privacy, but because an organization has a commercial need for the data and has fiddled about a bit to attempt to mitigate the worst of the impacts. Privacy essentially becomes what the business model will allow – the reasonable person is now an accountant.

It is also worth noting that by the time a reform bill is reintroduced (and if we dare to imagine it – actually passed), the Federal Court may have weighed in on the RTBF under PIPEDA, putting us another step closer to clarifying whether there is a RTBF in Canada’s private sector privacy law. Assuming that the Federal Court largely agrees with the Commissioner and his approach, if something like s. 12 of the CPPA becomes part of a new law, the criteria developed by the Commissioner for the reasonableness assessment in RTBF cases will be supplanted by the rather ugly list in s. 12(2). Not only will this cast doubt on the continuing existence of a RTBF, it may likely doom one. And this is not the only established interpretation/approach that will be unsettled by such a change.

The Commissioner’s findings in the RTBF investigation demonstrate the flexibility and simplicity of s. 5(3). When a PIPEDA reform bill returns to Parliament, let us hope that the s. 12(2) is no longer part of it.

The Alberta Court of Queen’s Bench has issued a decision in Clearview AI’s application for judicial of an Order made by the province’s privacy commissioner. The Commissioner had ordered Clearview AI to take certain steps following a finding that the company had breached Alberta’s Personal Information Protection Act (PIPA) when it scraped billions of images – including those of Albertans – from the internet to create a massive facial recognition database marketed to police services around the world. The court’s decision is a partial victory for the commissioner. It is interesting and important for several reasons – including for its relevance to generative AI systems and the ongoing joint privacy investigation into OpenAI. These issues are outlined below.

Brief Background

Clearview AI became notorious in 2020 following a New York Times article which broke the story on the company’s activities. Data protection commissioners in Europe and elsewhere launched investigations, which overwhelmingly concluded that the company violated applicable data protection laws. In Canada, the federal privacy commissioner joined forces with the Quebec, Alberta and British Columbia (BC) commissioners, each of which have private sector jurisdiction. Their joint investigation report concluded that their respective laws applied to Clearview AI’s activities as there was a real and substantial connection to their jurisdictions. They found that Clearview collected, used and disclosed personal information without consent, and that no exceptions to consent applied. The key exception advanced by Clearview AI was the exception for “publicly available information”. The Commissioners found that the scope of this exception, which was similarly worded in the federal, Alberta and BC laws, required a narrow interpretation and that the definition in the regulations enacted under each of these laws did not include information published on the internet. The commissioners also found that, contrary to shared legislative requirements, the collection and use of the personal information by Clearview AI was not for a purpose that a reasonable person would consider appropriate in the circumstances. The report of findings made a number of recommendations that Clearview ultimately did not accept. The Quebec, BC and Alberta commissioners all have order making powers (which the federal commissioner does not). Each of these commissioners ordered Clearview to correct its practices, and Clearview sought judicial review of each of these orders. The decision of the BC Supreme Court (which upheld the Commissioner’s order) is discussed in an earlier post. The decision from Quebec has yet to be issued.

In Alberta, Clearview AI challenged the commissioner’s jurisdiction on the basis that Alberta’s PIPA did not apply to its activities. It also argued that that the Commissioner’s interpretation of “publicly available information” was unreasonable. In the alternative, Clearview AI argued that ‘publicly available information’, as interpreted by the Commissioner, was an unconstitutional violation of its freedom of expression. It also contested the Commissioner’s finding that Clearview did not have a reasonable purpose for collecting, using and disclosing the personal information.

The Jurisdictional Question

Courts have established that Canadian data protection laws will apply where there is a real and substantial connection to the relevant jurisdiction. Clearview AI argued that it was a US-based company that scraped most of its data from social media websites mainly hosted outside of Canada, and that therefore its activities took place outside of Canada and its provinces. Yet, as Justice Feasby noted, “[s]trict adherence to the traditional territorial conception of jurisdiction would make protecting privacy interests impossible when information may be located everywhere and nowhere at once” (at para 50). He noted that there was no evidence regarding the actual location of the servers of social media platforms, and that Clearview AI’s scraping activities went beyond social media platforms. Justice Feasby ruled that he was entitled to infer from available evidence that images of Albertans were collected from servers located in Canada and in Alberta. He observed that in any event, Clearview marketed its services to police in Alberta, and its voluntary decision to cease offering those services did not alter the fact that it had been doing business in Alberta and could do so again. Further, the information at issue in the order was personal information of Albertans. All of this gave rise to a real and substantial connection with Alberta.

Publicly Available Information

The federal Personal Information Protection and Electronic Documents Act (PIPEDA) contains an exception to the consent requirement for “publicly available information”. The meaning of this term is defined in the Regulations Specifying Publicly Available Information. The relevant category is found in s. 1(e) which specifies “personal information that appears in a publication, including a magazine, book or newspaper, in printed or electronic form, that is available to the public, where the individual has provided the information.” Alberta’s PIPA contains a similar exception (as does BC’s law), although the wording is slightly different. Section 7(e) of the Alberta regulations creates an exception to consent where:

(e) the personal information is contained in a publication, including, but not limited to, a magazine, book or newspaper, whether in printed or electronic form, but only if

(i) the publication is available to the public, and

(ii) it is reasonable to assume that the individual that the information is about provided that information; [My emphasis]

In their joint report of findings, the Commissioners found that their respective “publicly available information” exceptions did not include social media platforms.

Clearview AI made much of the wording of Alberta’s exception, arguing that even if it could be said that the PIPEDA language excluded social media platforms, the use of the words “including but not limited to” in the Alberta regulation made it clear that the list was not closed, nor was it limited to the types of publications referenced.

In interpreting the exceptions for publicly available information, the Commissioners emphasized the quasi-constitutional nature of privacy legislation. They found that the privacy rights should receive a broad and expansive interpretation and the exceptions to those rights should be interpreted narrowly. The commissioners also found significant differences between social media platforms and the more conventional types of publications referenced in their respective regulations, making it inappropriate to broaden the exception. Justice Feasby, applying reasonableness as the appropriate standard of review, found that the Alberta Commissioner’s interpretation of the exception was reasonable.

Freedom of Expression

Had the court’s decision ended there, the outcome would have been much the same as the result in the BC Supreme Court. However, in this case, Clearview AI also challenged the constitutionality of the regulations. It sought a declaration that if the exception were interpreted as limited to books, magazines and comparable publications, then this violated its freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms.

Clearview AI argued that its commercial purposes of scraping the internet to provide information services to its clients was expressive and was therefore protected speech. Justice Feasby noted that Clearview’s collection of internet-based information was bot-driven and not engaged in by humans. Nevertheless, he found that “scraping the internet with a bot to gather images and information may be protected by s. 2(b) when it is part of a process that leads to the conveyance of meaning” (at para 104).

Interestingly, Justice Feasby noted that since Clearview no longer offered its services in Canada, any expressive activities took place outside of Canada, and thus were arguably not protected by the Charter. However, he acknowledged that the services had at one point been offered in Canada and could be again. He observed that “until Clearview removes itself permanently from Alberta, I must find that its expression in Alberta is restricted by PIPA and the PIPA Regulation” (at para 106).

Having found a prima facie breach of s. 2(b), Justice Feasby considered whether this was a reasonable limit demonstrably justified in a free and democratic society, under s. 1 of the Charter. The Commissioner argued that the expression at issue in this case was commercial in nature and thus of lesser value. Justice Feasby was not persuaded by category-based assumptions of value; rather, he preferred an approach in which the regulation of commercial expression is consistent with and proportionate to its character.

Justice Feasby found that the Commissioner’s reasonable interpretation of the exception in s. 7 of the regulations meant that it would exclude social media platforms or “other kinds of internet websites where images and personal information may be found” (at para 118). He noted that this is a source-based exception – in other words that some publicly available information may be used without knowledge or consent, but not other similar information. The exclusion depends on the source and not the purpose of use for the personal information. Justice Feasby expressed concern that the same exception that would exclude the scraping of images from the internet for the creation of a facial recognition database would also apply to the activities of search engines widely used by individuals to gain access to information on the internet. He thus found that the publicly available information exception was overbroad, stating: “Without a reasonable exception to the consent requirement for personal information made publicly available on the internet without use of privacy settings, internet search service providers are subject to a mandatory consent requirement when they collect, use and disclose such personal information by indexing and delivering search results” (at para 138). He stated: “I take judicial notice of the fact that search engines like Google are an important (and perhaps the most important) way individuals access information on the internet” (at para 144).

Justice Feasby also noted that while it was important to give individuals some level of control over their personal information, “it must also be recognized that some individuals make conscious choices to make their images and information discoverable by search engines and that they have the tools in the form of privacy settings to prevent the collection, use, and disclosure of their personal information” (at para 143). His constitutional remedy – to strike the words “including, but not limited to magazines, books, and newspapers” from the regulation was designed to allow “the word ‘publication’ to take its ordinary meaning which I characterize as ‘something that has been intentionally made public’” (at para 149).

The Belt and Suspenders Approach

Although excising part of the publicly available information definition seems like a major victory for Clearview AI, in practical terms it is not. This is because of what the court refers to as the law’s “belt and suspenders approach”. This metaphor suggests that there are two routes to keep up privacy’s pants – and loosening the belt does not remove the suspenders. In this case, the suspenders are located in the clause found in PIPA, as well as in its federal and BC counterparts, that limits the collection, use and disclosure of personal information to only that which “a reasonable person would consider appropriate in the circumstances”. The court ruled that the Commissioner’s conclusion that the scraping of personal information was not for purposes that a reasonable person would consider appropriate in the circumstances was reasonable and should not be overturned. This approach, set out in the joint report of findings, emphasized that the company’s mass data scraping involved over 3 billion images of individuals, including children. It was used to create biometric face prints that would remain in Clearview’s databases even if the source images were removed from the internet, and it was carried out for commercial purposes. The commissioners also found that the purposes were not related to the reasons why individuals might have shared their photographs online, could be used to the detriment of those individuals, and created the potential for a risk of significant harm. Continuing with his analogy to search engines, Justice Feasby noted that Clearview AI’s use of publicly available images was very different from the use of the same images by search engines. The different purposes are essential to the reasonableness determination. Justice Feasby states: “The “purposes that are reasonable” analysis is individualized such that a finding that Clearview’s use of personal information is not for reasonable purposes does not apply to other organizations and does not threaten the operations of the internet” (at para 159). He noted that the commercial dimensions of the use are not determinative of reasonableness. However, he observed that “where images and information are posted to social media for the purpose of sharing with family and friends (or prospective friends), the commercialization of such images and information by another party may be a relevant consideration in determining whether the use is reasonable” (at para 160).

The result is that Clearview AI’s scraping of images from the public internet violates Alberta’s PIPA. The court further ruled that the Commissioner’s order was clear and specific, and capable of being implemented. Justice Feasby required Clearview AI to report within 50 days on its good faith progress in taking steps to cease the collection, use and disclosure of images and biometric data collected from individuals in Alberta, and to delete images and biometric data in its database that are from individuals in Alberta.

Harmonized Approaches to Data Protection Law in Canada

This decision highlights some of the challenges to the growing collaboration and cooperation of privacy commissioners in Canada when it comes to interpreting key terms and concepts in substantially similar legislation. Increasingly, the commissioners engage in joint investigations where complaints involve organizations operating in multiple jurisdictions in Canada. While this occurs primarily in the private sector context, it is not exclusively the case, as a recent joint investigation between the BC and Ontario commissioners into a health data breach demonstrates. Joint investigations conserve regulator resources and save private sector organizations from having to respond to multiple similar and concurrent investigations. In addition, joint investigations can lead to harmonized approaches and interpretations of shared concepts in similar legislation. This is a good thing for creating certainty and consistency for those who do business across Canadian jurisdictions.

However, harmonized approaches are vulnerable to multiple judicial review applications, as was the case following the Clearview AI investigation. Although the BC Supreme Court found that the BC Commissioner’s order was reasonable, what the Alberta King’s Bench decision demonstrates is that a common front can be fractured. Justice Feasby found that a slight difference in wording between Alberta’s regulations and those in BC and at the federal level was sufficient to justify finding the scope of Alberta’s publicly available information exception to be unconstitutional.

Harmonized approaches may also be vulnerable to unilateral legislative change. In this respect, it is worth noting that an Alberta report on the impending reform of PIPA recommends “that the Government take all necessary steps, including through proposing amendments to the Personal Information Protection Act, to improve alignment of all provincial privacy legislation, including in the private, public and health sectors” (at p. 13).

The Elephant in the Room: Generative AI and Data Protection Law in Canada

In his reasons, Justice Feasby made Google’s search functions a running comparison for Clearview AI’s data scraping practices. Perhaps a better example would have been the data scraping that takes place in order to train generative AI models. However, the court may have avoided that example because there is an ongoing investigation by the Alberta, Quebec, BC and federal commissioners into OpenAI’s practices. The findings in that investigation are overdue – perhaps the delay has, at least in part, been caused by anticipation of what might happen with the Alberta Clearview AI judicial review. The Alberta decision will likely present a conundrum for the commissioners.

Reading between the lines of Justice Feasby’s decision, it is entirely possible that he would find that the scraping of the public internet to gather training data for generative AI systems would both fall within the exception for publicly available information and be for a purpose that a reasonable person would consider appropriate in the circumstances. Generative AI tools are now widely used – more widely even than search engines since these tools are now also embedded in search engines themselves. To find that the collection and use of personal information that may be indiscriminately found on the internet cannot be used in this way because consent is required is fundamentally impractical. In the EU, the legitimate interest exception in the GDPR provides latitude for use in this way without consent, and recent guidance from the European Data Protection Supervisor suggestions that legitimate interests combined, where appropriate with Data Protection Impact Assessments may address key data protection issues.

In this sense, the approach taken by Justice Feasby seems to carve a path for data protection in a GenAI era in Canada by allowing data scraping of publicly available sources on the Internet in principle, subject to the limit that any such collection or any ensuing use or disclosure of the personal information must be for purposes that a reasonable person would consider appropriate in the circumstances. However, this is not a perfect solution. In the first place, unlike the EU approach, which ensures that other privacy protective measures (such as privacy impact assessments) govern this kind of mass collection, Canadian law remains outdated and inadequate. Further, the publicly available information exceptions – including Alberta’s even after its constitutional nip and tuck – also emphasize that, to use the language of Alberta’s PIPA, it must be “reasonable to assume that the individual that the information is about provided the information”. In fact, there will be many circumstances in which individuals have not provided the information posted online about them. This is the case with photos from parties, family events and other social interactions. Further, social media – and the internet as a whole – is full of non-consensual images, gossip, anecdotes and accusations.

The solution crafted by the Alberta Court of King’s Bench is therefore only a partial solution. A legitimate interest exception would likely serve much better in these circumstances, particularly if it is combined with broader governance obligations to ensure that privacy is adequately considered and assessed. Of course, before this happens, the federal government’s privacy reform measures in Bill C-27 must be resuscitated in some form or another.

The Commission d’accès à l’information du Québec (CAI) has released a decision regarding a pilot project to use facial recognition technology (FRT) in Métro stores in Quebec. When this is paired with a 2023 investigation report of the BC Privacy Commissioner regarding the use of FRT in Canadian Tire Stores in that province, there seems to be an emerging consensus around how privacy law will apply to the use of FRT in the retail sector in Canada.

Métro had planned to establish a biometric database to enable the use of FRT at certain of its stores operating under the Métro, Jean Coutu and Super C brands, on a pilot basis. The objective of the system was to reduce shoplifting and fraud. The system would function in conjunction with video surveillance cameras installed at the entrances and exits to the stores. The reference database would consist of images of individuals over the age of majority who had been linked to security incidents involving fraud or shoplifting. Images of all shoppers entering the stores would be captured on the video surveillance cameras and then converted to biometric face prints for matching with the face prints in the reference database.

The CAI initiated an investigation after receiving notice from Métro of the creation of the biometric database. The company agreed to put its launch of the project on hold pending the results of the investigation.

The Quebec case involved the application of Quebec’s the Act respecting the protection of personal information in the private sector (PPIPS) as well as its Act to establish a legal framework for information technology (LFIT) The LFIT requires an organization that is planning to create a database of “biometric characteristics and measurements” to disclose this fact to the CAI no later than 60 days before it is to be used. The CAI can impose requirements and can also order the use suspended or the database destroyed if it is not in compliance with any such orders or if it “otherwise constitutes an invasion of privacy” (LFIT art. 45).

Métro argued that the LFIT required individual consent only for the use of a biometric database to ‘confirm or verify’ the identity of an individual (LFIT s. 44). It maintained that its proposed use was different – the goal was not to confirm or verify the identities of shoppers; rather, it was to identify ‘high risk’ shoppers based on matches with the reference database. The CAI rejected this approach, noting the sensitivity of biometric data. Given the quasi-constitutional status of Canadian data protection laws, the CAI found that a ‘large and liberal’ approach to interpretation of the law was required. The CAI found that Métro was conflating the separate concepts of “verification” and “confirmation” of identity. In this case, the biometric faceprints in the probe images would be used to search for a match in the “persons of interest” database. Even if the goal of the generation of the probe images was not to determine the precise identity of all customers – or to add those face prints to the database – the underlying goal was to verify one attribute of the identity of shoppers – i.e., whether there was a match with the persons of interest database. This brought the system within the scope of the LTIF. The additional information in the persons of interest database, which could include the police report number, a description of the past incident, and related personal information would facilitate the further identification of any matches.

Métro also argued that the validation or confirmation of identity did not happen in one single process and that therefore s. 44 of the LTIF was not engaged. The CAI dismissed what it described as the compartmentalisation of the process. Instead, the law required a consideration of the combined effect of all the steps in the operation of the system.

The company also argued that they had obtained the consent required under art 12 of the PPIPS. It maintained that the video cameras captured shoppers’ images with their consent, as there was notice of use of the cameras and the shoppers continued into the stores. It argued that the purposes for which it used the biometric data were consistent with the purposes for which the security cameras were installed, making it a permissible secondary use under s. 12(1) of PPIPS. The CAI rejected this argument noting that it was not a question of a single collection and a related secondary use. Rather, the generation of biometric faceprints from images captured on video is an independent collection personal of data. That collection must comply with data protection requirements and cannot be treated a secondary use of already collected data.

The system proposed by Métro would be used on any person entering the designated stores, and as such it was an entry requirement. Individuals would have no ability to opt out and still shop, and there were no alternatives to participation in the FRT scheme. Not only is consent not possible for the general population entering the stores, those whose images become part of the persons of interest database would also have no choice in the matter.

Métro argued that its obligation to protect its employees and the public outweighed the privacy interests of its customers. The CAI rejected this argument, noting that this was not the test set out in the LTIF, which asked instead whether the database of biometric characteristics “otherwise constitutes an invasion of privacy” (art 45). The CAI was of the view that to create a database of biometric characteristics and to match these characteristics against face prints generated from data captured from the public without their consent in circumstances where the law required consent amounted to a significant infringement of privacy rights. The Commission emphasized again the highly sensitive character of the personal data and issued an order prohibiting the implementation of the proposed system.

The December 2023 BC investigation report was based on that province’s Personal Information Protection Act. It followed a commissioner-initiated investigation into the use by several Canadian Tire Stores in BC of FRT systems integrated with video surveillance cameras. Like the Métro pilot, biometric face prints were generated from the surveillance footage and matched against a persons-of-interest database. The stated goals of the systems were similar as well – to reduce shoplifting and enhance the security of the stores. As was the case in Quebec, the BC Commissioner found that the generation of biometric face prints was a new collection of personal information that required express consent. The Commissioner had found that the stores had not provided adequate notice of collection, making the issue of consent moot. However, he went on to find that even if there had been proper notice, express consent had not been obtained, and consent could not be implied in the circumstances. The collection of biometric faceprint data of everyone entering the stores in question was not for a purpose that a reasonable person would consider appropriate, given the acute sensitivity of the data collected and the risks to the individual that might flow from its misuse, inaccuracy, or from data breaches. Interestingly, in BC, the four stores under investigation removed their FRT systems soon after receiving the notice of investigation. During the investigation, the Commissioner found little evidence to support the need for the systems, with store personnel admitting that the systems added little to their normal security functions. He chastised the retailers for failing both to conduct privacy impact assessments prior to adoption and to put in place measures to evaluate the effectiveness and performance of the systems.

An important difference between the two cases relates to the ability of the CAI to be proactive. In Quebec, the LTIF requires notice to be provided to the Commissioner of the creation of a biometric database in advance of its implementation. This enabled it to rule on the appropriateness of the system before privacy was adversely impacted on a significant scale. By contrast, the systems in BC were in operation for three years before sufficient awareness surfaced to prompt an investigation. Now that powerful biometric technologies are widely available for retail and other uses, governments should be thinking seriously about reforming private sector privacy laws to provide for advance notice requirements – at the very least, for biometric systems.

Following both the Quebec and the BC cases, it is difficult to see how broad-based FRT systems integrated with store security cameras could be deployed in a manner consistent with data protection laws – at least under current shopping business models. This suggests that such uses may be emerging as a de facto no-go zone in Canada. Retailers may argue that this reflects a problem with the law, to the extent that it interferes with their business security needs. Yet if privacy is to mean anything, there must be reasonable limits on the collection of personal data – particularly sensitive data. Just because something can be done, does not mean it should be. Given the rapid advance of technology, we should be carefully attuned to this. Being FRT face-printed each time one goes to the grocery store for a carton of milk may simply be an unacceptably disproportionate response to an admittedly real problem. It is a use of technology that places burdens and risks on ordinary individuals who have not earned suspicion, and who may have few other choices for accessing basic necessities.

The Clearview AI saga has a new Canadian instalment. In December 2024, the British Columbia Supreme Court rendered a decision on Clearview AI’s application for judicial review of an order issued by the BC Privacy Commissioner. This post explores that decision and some of its implications. The first part sets the context, the next discusses the judicial review decision, and part three looks at the ramifications for Canadian privacy law of the larger (and ongoing) legal battle.

Context

Late in 2021, the Privacy Commissioners of BC, Alberta, Quebec and Canada issued a joint report on their investigation into Clearview AI (My post on this order is here). Clearview AI, a US-based company, had created a massive facial recognition (FRT) database from images scraped from the internet that it marketed to law enforcement agencies around the world. The investigation was launched after a story broke in the New York Times about Clearview’s activities. Although Canadian police services initially denied using Clearview AI, the RCMP later admitted that it had purchased two licences. Other Canadian police services made use of promotional free accounts.

The joint investigation found that Clearview AI had breached the private sector data protection laws of the four investigating jurisdictions by collecting and using sensitive personal information without consent and by doing so for purposes that a reasonable person would not consider appropriate in the circumstances. The practices also violated Quebec’s Act to establish a legal framework for information technology. Clearview AI disagreed with these conclusions. It indicated that it would temporarily cease its operations in Canada but maintained that it was entitled to scrape content from the public web. After failing to respond to the recommendations in the joint report, the Commissioners of Quebec, BC and Alberta issued orders against the company. These orders required Clearview AI to cease offering its services in their jurisdictions, to make best efforts to stop collecting the personal information of those within their respective provincial boundaries, and to delete personal information in its databases that had been improperly collected from those within their boundaries. No order issued from the federal Commissioner, who does not have order making powers under the Personal Information Protection and Electronic Documents Act (PIPEDA). He could have applied to the Federal Court for an order but chose not to do so (more on that in Part 3 of this post).

Clearview AI declined to comply with the provincial orders, other than to note that it had already temporarily ceased operations in Canada. It then applied for judicial review of the orders in each of the three provinces.

To date, only the challenge to the BC Order has been heard and decided. In the BC application, Clearview argued that the Commissioner’s decision was unreasonable. Specifically, it argued that BC’s Personal Information Protection Act (PIPA) did not apply to Clearview AI, that the information it scraped was exempt from consent requirements because it was “publicly available information”, and that the Commissioner’s interpretation of purposes that a reasonable person would consider appropriate in the circumstances was unreasonable and failed to consider Charter values. In his December 2024 decision, Justice Shergill of the BC Supreme Court disagreed, upholding the Commissioner’s order.

The BC Supreme Court Decision on Judicial Review

Justice Shergill confirmed that BC’s PIPA applies to Clearview AI’s activities, notwithstanding the fact that Clearview AI is a US-based company. He noted that applying the ‘real and substantial connection’ test – which considers the nature and extent of connections between a party’s activities and the jurisdiction in which proceedings are initiated – leads to that conclusion. There was evidence that Clearview AI’s database had been marketed to and used by police services in BC, as well as by the RCMP which polices many parts of the province. Further, Justice Shergill noted that Clearview’s data scraping practices were carried out worldwide and captured data about BC individuals including, in all likelihood, data from websites hosted in BC. Interestingly, he also found that Clearview’s scraping of images from social media sites such as Facebook, YouTube and Instagram also created sufficient connection, as these sites “undoubtedly have hundreds of thousands if not millions of users in British Columbia” (at para 91). In reaching his conclusion, Justice Shergill emphasized “the important role that privacy plays in the preservation of our societal values, the ‘quasi-constitutional’ status afforded to privacy legislation, and the increasing significance of privacy laws as technology advances” (at para 95). He also found that there was nothing unfair about applying BC’s PIPA to Clearview AI, as the company “chose to enter British Columbia and market its product to local law enforcement agencies. It also chooses to scrape data from the Internet which involves personal information of people in British Columbia” (at para 107).

Sections 12(1)(e), 15(1)(e) and 18(1)(e) of PIPA provide exceptions to the requirement of knowledge and consent for the collection, use and disclosure of personal information where “the personal information is available to the public” as set out in regulations. The PIPA Regulations include “printed or electronic publications, including a magazine, book, or newspaper in printed or electronic form.” Similar exceptions are found in the federal PIPEDA and in Alberta’s Personal Information Protection Act. Clearview AI had argued that public internet websites, including social media sites, fell within the category of electronic publications and their scraping was thus exempt from consent requirements. The commissioners disagreed, and Clearview AI challenged this interpretation as unreasonable.

Justice Shergill found that the Commissioners’ conclusion that social media websites fell outside the exception for publicly available information was reasonable. The BC Commissioner was entitled to read the list in the PIPA Regulations as a “narrow set of sources” (at para 160). Justice Shergill reviewed the reasoning in the joint report for why social media sites should be treated differently from other types of publications mentioned in the exception. These include the fact that social media sites are dynamic and not static and that individuals exercise a different level of control over their personal information on social media platforms than on news or other such sites. Although the legislation may require a balancing of privacy rights with private sector interests, Justice Shergill found that it was reasonable for the Commissioner to conclude that privacy rights should be given precedence over commercial interests in the overall context of the legislation. Referencing the Supreme Court of Canada’s decision in Lavigne, Justice Shergill noted that “it is the protection of individual privacy that supports the quasi-constitutional status of privacy legislation, not the right of the organization to collect and use personal information” (at para 174). An individual’s ability to control what happens to their personal information is fundamental to the autonomy and dignity protected by privacy rights and “it is thus reasonable to conclude that any exception to these important rights should be interpreted narrowly” (at para 175).

Clearview AI argued that posting photos to social media sites reflected an individual’s autonomous choice to surrender the information to the public domain. Justice Shergill preferred the Commissioner’s interpretation, which considered the sensitivity of the biometric information, and the impact its collection and use could have on individuals. He referenced the Supreme Court of Canada’s decision in R. v. Bykovets (my post on this case is here), which emphasized that “individuals ‘may choose to divulge certain information for a limited purpose, or to a limited class of persons, and nonetheless retain a reasonable expectation of privacy” (at para 162, citing para 46 of Bykovets).

Clearview AI also argued that the Commissioner was unreasonable in not taking into account Charter values in his interpretation of PIPA. In particular, the company was of the view that the freedom of expression, which guarantees the right both to communicate and to receive information, extended to the ability to access and use publicly available information without restriction. Although Justice Shergill found that the Commissioner could have been more direct in his consideration of Charter values, his decision was still not unreasonable on this point. The Commissioner did not engage with the Charter values issues at length because he did not consider the law to be ambiguous – Charter values-based interpretation comes into play in helping to resolve ambiguities in the law. As Justice Shergill noted, “It is difficult to understand how Clearview’s s. 2(b) Charter rights are infringed through an interpretation of ‘publicly available’ which excludes it from collecting personal information from social media websites without consent” (at para 197).

Like its counterpart legislation in Alberta and at the federal level, BC’s PIPA contains a section that articulates the overarching principle, that any collection, use or disclosure of personal information must be for purposes that a reasonable person would consider appropriate in the circumstances. This means, among other things, that even if the exception to consent had applied in this case, the collection and use of the scraped personal information would still have had to have been for a reasonable purpose.

The Commissioners had found that overall, Clearview’s scraping of vast quantities of sensitive personal information from the internet to build a massive facial recognition database was not one that a reasonable person would find appropriate in the circumstances. Clearview AI preferred to characterize its purpose as providing a service to the benefit of law enforcement and national security. In their joint report, the Commissioners had rejected this characterization noting that it did not justify the massive, widespread scraping of personal information by a private sector company. Further, the Commissioners had noted that such an activity could have negative consequences for individuals, including cybersecurity risks and risks that errors could lead to reputational harm. They also observed that the activity contributed to “broad-based harm inflicted on all members of society, who find themselves under continual mass surveillance by Clearview based on its indiscriminate scraping and processing of their facial images” (at para 253). Justice Shergill found that the record supported these conclusions, and that the Commissioners’ interpretation of reasonable purposes was reasonable.

Clearview AI also argued that the Commissioner’s Order was “unnecessary, unenforceable or overbroad”, and should thus be quashed (at para 258). Justice Shergill accepted the Commissioner’s argument that the order was necessary because Clearview had only temporarily suspended its services in Canada, leaving open the possibility that it would offer its services to Canadian law enforcement agencies in the future. He also accepted the Commissioner’s argument that compliance with the order was possible, noting that Clearview had accepted certain steps for ceasing collection and removing images in its settlement of an Illinois class action lawsuit. The order required the company to use “best efforts”, in an implicit acknowledgement that a perfect solution was likely impossible. Clearview argued that a “best efforts” standard was too vague to be enforceable; Justice Shergill disagreed, noting that courts often used “best efforts language”. Further, and quite interestingly, Justice Shergill noted that “if it is indeed impossible for Clearview to sufficiently identify personal information sourced from people in British Columbia, then this is a situation of Clearview’s own making” (at para 279). He noted that “[i]t is not an answer for Clearview to say that because the data was indiscriminately collected, any order requiring it to cease collecting data of persons present in a particular jurisdiction is unenforceable” (at para 279).

Implications

This is a significant decision as it upholds interpretations of important provisions of BC PIPA. These provisions are similar to ones in Alberta’s PIPA and in the federal PIPEDA. However, it is far from the end of the Clearview AI saga, and there is much to continue to watch.

In the first place, the BC Supreme Court decision is already under appeal to the BC Court of Appeal. If the Court of Appeal upholds this decision, it will be a major victory for the BC Commissioner. Yet, either way, there is likely to be a further application for leave to appeal to the Supreme Court of Canada. It may be years before the issue is finally resolved. In this time, data protection laws in BC, Alberta and at the federal level might well be reformed. It will therefore also be important to examine any new bills to see whether the provisions at issue in this case are addressed in any way or left as is.

In the meantime, Clearview AI has also filed for judicial review of the orders of the Quebec and Alberta commissioners, and these applications are moving forward. All three orders (BC, Alberta and Quebec) are based on the same joint findings. A decision by either or both the Quebec or Alberta superior courts that the orders are unreasonable could strike a significant blow for the united front that Canada’s commissioners are increasingly showing on privacy issues that affect all Canadians. There is therefore a great deal riding on the outcomes of these applications. In any event, regardless of the outcomes, expect applications for leave to appeal to the Supreme Court of Canada. Leave to appeal is less likely to be granted if all three provincial courts of appeal take a similar approach to the issues. It is at this point impossible to predict how this litigation will play out.

It is notable that the Privacy Commissioner of Canada, who has no order making powers under PIPEDA but who can apply to Federal Court for an order, declined to do so. Under PIPEDA, such an application requires a hearing de novo by the Federal Court – this means that unlike the judicial review proceedings in the other provinces, the Federal Court need not show any deference to the federal Commissioner’s findings. Instead, the Court would proceed to a determination of the issues after hearing and considering the parties’ evidence and argument. One might wonder whether the rather bruising decision of the Federal Court in Privacy Commissioner v. Facebook (which was subsequently overturned by the Federal Court of Appeal) might have influenced the Commissioner to not roll the dice to seek an order with so much at stake. That a hearing de novo before the Federal Court could upset the apple cart of the Commissioners’ attempts to co-ordinate efforts, reduce duplication and harmonize interpretation, is sobering. Yet, it also means that if this litigation saga ends with the conclusion that the orders are reasonable and enforceable, BC, Alberta and Quebec residents will have received results in the form of orders requiring Clearview to delete images and to geo-fence any future collection of images to protect those within those provinces (which will still need to be made enforceable in the US) – while Canadians elsewhere in the country will not. Canadians will need long promised but as yet undelivered reform of PIPEDA to address the ability of the federal Commissioner to issue orders – ones that will be subject to judicial review with appropriate deference, rather than second guessed by the Personal Information and Data Protection Tribunal proposed in Bill C-27.

Concluding thoughts

Despite rulings from privacy and data protection commissioners around the world that Clearview AI is in breach of their respective laws, and notwithstanding two class action lawsuits in the US under the Illinois Biometric Information Privacy Act, the company has continued to grow its massive FRT database. At the time of the Canadian investigation, the database was said to hold 3 billion images. Current reports place this number at over 50 billion. Considering the resistance of the company to compliance with Canadian law, this raises the question of what it will take to motivate compliance by resistant organizations. As the proposed amendments to Canada’s federal private sector privacy laws wither on the vine after neglect and mismanagement in their journey through Parliament, this becomes a pressing and important question.

Ontario plans to introduce digital identity services (Digital ID) to provide Ontarians with better access to their personal health information (PHI) in the provincial Electronic Health Record (EHR). This is being done through proposed amendments to the Personal Health Information Protection Act (PHIPA) introduced in Schedule 6 of Bill 231, currently before the legislature. Schedule 6 replaces proposed amendments to PHIPA regulations that were introduced in the summer of 2024 and that were substantively criticized by Ontario’s Privacy Commissioner. In introducing Bill 231, Health Minister Sylvia Jones stated that the goal is “to provide more people with the right publicly funded care in the right place by making it easier to access your health care records”.

Digital ID is an electronic means of verifying a person’s identity. Typically, such systems include some form of biometric data (for example, a face-print) to create a secure and verifiable ID system. We are becoming increasingly used to consuming products and services from both public and private sector sources in mobile and online contexts. Digital ID has the potential to improve secure access to these services.

Digital ID is already in place in many countries, but adoption has been slow in Canada. This may be in part because Digital ID raises concerns among some about the empowerment of a surveillance state. There are rumours that Ontario retreated from plans to introduce a more ambitious public sector Digital ID system over concerns about potential backlash, although it is quietly moving ahead in Bill 231 with the Digital Health ID. Unfortunately, Digital ID is most advantageous where a single Digital ID can be used to access multiple sites and services, eliminating the need to manage numerous usernames and passwords (with the security risks such management can entail). It is important to note that under Bill 231, the Digital Health ID will be single purpose, significantly reducing its advantages.

There is no doubt that Digital ID systems raise important privacy and security issues. They must be carefully implemented to ensure that the sensitive personal information they incorporate and the identities they represent are not misappropriated. They also raise equity issues. If Digital ID provides better and faster access to information and services, those who are not able to make use of Digital ID – because of age, disability, or the digital divide – will be at a disadvantage. Attention must be paid to ensuring that services and information are still available to those who must use other forms of identification – and that those other forms of identification remain accessible so long as they are needed.

Ontario’s Privacy Commissioner, in her comments on Bill 231 indicates that she fully supports the Ontario government’s goal in introducing Digital ID for the Electronic Health Record. She notes the importance of “enabling meaningful access to one’s health records” and agrees that “EHR access can help Ontarians better manage their health, and in turn, help create efficiencies in the health care system”. However, while she endorses the objectives, the Commissioner is highly critical of Bill 231. Her detailed comments note that the proposed amendments to PHIPA have the potential to reduce rights of access to personal health information in the EHR; that the bill contains no parameters on how, why and by whom the Digital ID scheme will be used; and that it includes broad regulation and directive making powers that could unravel rights and requirements already in place under PHIPA. She also observes that it conflates and converges the role of Ontario Health with respect to health data and Digital ID, and that it creates inconsistent and incomplete powers that will hinder enforcement and oversight. These are important concerns, articulately expressed by the head of perhaps the only independent body in the province capable of making sense of Bill 231’s Schedule 6.

Schedule 6 is brutally difficult to read and comprehend. This is largely because the introduction of Digital Health ID is being done as a series of amendments to an already (overly) complex piece of health privacy legislation. New legislation often has a narrative structure that – although not gripping reading – is at least relatively easy to understand and to follow. Bills that amend existing legislation can also generally be understood by those who work with them. You can cross-reference and see where new powers are added, and where the wording of clauses has been changed. But Schedule 6 of Bill 231 is an ugly hybrid. It introduces a complex new Digital Health ID scheme as an amendment to existing health privacy legislation, even though Digital Health ID is more than just a privacy issue. There is no doubt that such a system would have to be compliant with PHIPA and that some amendments might be required. However, Digital Health ID creates a new system for accessing health data in the EHR. It could have been introduced as a separate bill. Such an approach would have been clearer, more transparent and more accessible than the convoluted and incomplete scheme that has been shoe-horned into PHIPA by Bill 231.

It is not just the lack of transparency caused by such a contorted set of amendments that is a problem. In a 2019 presentation by Assistant Deputy Minister of Health Hein, the government’s approach to their “Digital First for Health” program promised to “[m]odernize PHIPA to make it easier for Ontarians to access their information, streamline information sharing processes, and support the use of data for analytics and planning.” One of the goals of PHIPA modernization was “[r]educing barriers to patient access by enabling patients to more easily access, use, and share their personal health information, empowering them to better manage their health.” This sets up Digital ID as part of the PHIPA modernization process. But Digital ID is not a “solution” to barriers caused by privacy laws. For Digital ID, the real barriers to better access to health data are structural and infrastructural issues in health data management.

Let me be clear that I am not suggesting that the Ontario government’s health system reform goals are not important. They are. But Digital Health ID should not be framed as “PHIPA modernization”. The objectives of such a system are not about modernizing health privacy legislation; they are about modernizing the health care system. They will have privacy implications which will need to be attended to but framing them as “PHIPA modernization” means that you end up where we are now: with changes to the health care system being implemented through complicated and problematic amendments to legislation that is first and foremost meant to protect the privacy of personal health information.

Australia and New Zealand have both introduced government-backed digital ID systems through specific digital identity legislation. Admittedly both statutes address digital identity more broadly than just in the health sector. Nevertheless, these laws are examples of how legislation can clearly and systematically set out a framework for digital identity that includes all the necessary elements – including how the law will protect privacy and how it dovetails with existing privacy laws and oversight. This kind of framework facilitates public debate and discussion. It makes it easier to understand, critique and propose improvements to the Bill. In her comments on Bill 231, for example, the Privacy Commissioner notes that “[c]larity and coherence of the many roles of Ontario Health would also assist my office’s oversight and enforcement role.” She observes that Schedule 6 “is inconsistent and incomplete in its approach to my office’s oversight and enforcement authority”. These are only two examples of places in her comments where it is evident that the lack of clarity regarding the proposed Digital Health ID scheme hampers its assessment.

Schedule 6 also leaves much of its substance to future regulations and directives. This is part of a disturbing trend in law-making in which key details of legislation are left to behind-the-scenes rulemaking. As the Privacy Commissioner notes in her comments, some of the matters left to these subordinate forms of regulation are matters of policy for which public consultation and engagement are required. As she so aptly puts it: “Directives are appropriate for guiding the implementation of legal requirements, not for establishing the very legal requirements to be implemented.”

Clearly, technology moves fast, and it is hard to keep laws relevant and applicable. There may be a need in some cases to resort to different tools or strategies to ensure that the laws remain flexible enough to adapt to evolving and emerging technologies. The challenge is, however, to determine which things belong in the law, and which things can be ‘flexed’. There is a difference between building flexibility into a law and enacting something that looks like a rough draft with sticky notes in places where further elaboration will be needed. Schedule 6 of Bill 231 is a rough draft of a set of amendments to an already overly-complex law. It should be its own statute, carefully coordinated with PHIPA and its independent oversight.

Digital Health ID may be important to improve access to health information for Ontarians. It will certainly carry with it risks that should be properly managed. As a starting point, Ontarians deserve a clear and transparent law that can be understood and debated. Further, privacy law should not be set up as a problem that stands in the way of reforming the health care system. Such an approach does not make good law, nor does it bode well for the privacy rights of Ontarians.

Regulatory sandboxes are a relatively recent innovation in regulation (with the first one being launched by the UK Financial Authority in 2015). Since that time, they have spread rapidly in the fintech sector. The EU’s new Artificial Intelligence Act has embraced this new tool, making AI regulatory sandboxes mandatory for member states. In its most recent budget, Canada’s federal government also revealed a growing interest in advancing the use of regulatory sandboxes, although sandboxes are not mentioned in the ill-fated Artificial Intelligence and Data Act in Bill C-27.

Regulatory sandboxes are seen as a tool that can support innovation in areas where complex technology evolves rapidly, creating significant regulatory hurdles for innovators to overcome. The goal is not to evade or dilute regulation; rather, it is to create a space where regulators and innovators can explore how regulations designed to protect the public should be applied to technologies that were unforeseen at the time the regulations were drafted. The sandbox is meant to be a learning experience for both regulators and innovators. Outcomes can include new guidance that can be shared with all innovators; recommendations for legislative or regulatory reform; or even decisions that a particular innovation is not yet capable of safe deployment.

Of course, sandboxes can raise issues about regulatory capture and the independence of regulators. They are also resource intensive, requiring regulators to make choices about how to meet their goals. They require careful design to minimize risks and maximize return. They also require the interest and engagement of regulated parties.

In the autumn of 2023, Elif Nur Kumru and I began a SSHRC-funded project to explore the potential for a privacy regulatory sandbox for Ontario. Working in partnership with the Office of Ontario’s Information and Privacy Commissioner, we examined the history and evolution of regulatory sandboxes. We met with representatives of data protection authorities in the United Kingdom, Norway and France to learn about the regulatory sandboxes they had developed to address privacy issues raised by emerging technologies, including artificial intelligence. We identified some of the challenges and issues, as well as key features of regulatory sandboxes. Our report is now publicly available in both English and French.

On May 13, 2024, the Ontario government introduced Bill 194. The bill addresses a catalogue of digital issues for the public sector. These include: cybersecurity, artificial intelligence governance, the protection of the digital information of children and youth, and data breach notification requirements. Consultation on the Bill closes on June 11, 2024. Below is my submission to the consultation. The legislature has now risen for the summer, so debate on the bill will not be moving forward now until the fall.

Submission to the Ministry of Public and Business Service Delivery on the Consultation on proposed legislation: Strengthening Cyber Security and Building Trust in the Public Sector Act, 2024

Teresa Scassa, Canada Research Chair in Information Law and Policy, University of Ottawa

June 4, 2024

I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Information Law and Policy. I research and write about legal issues relating to artificial intelligence and privacy. My comments on Bill 194 are made on my own behalf.

The Enhancing Digital Security and Trust Act, 2024 has two schedules. Schedule 1 has three parts. The first relates to cybersecurity, the second to the use of AI in the broader public service, and the third to the use of digital technology affecting individuals under 18 years of age in the context of Children’s Aid Societies and School Boards. Schedule 2 contains a series of amendments to the Freedom of Information and Protection of Privacy Act (FIPPA). My comments are addressed to each of the Schedules. Please note that all examples provided as illustrations are my own.

Summary

Overall, I consider this to be a timely Bill that addresses important digital technology issues facing Ontario’s public sector. My main concerns relate to the sections on artificial intelligence (AI) systems and on digital technologies affecting children and youth. I recommend the addition of key principles to the AI portion of the Bill in both a reworked preamble and a purpose section. In the portion dealing with digital technologies and children and youth, I note the overlap created with existing privacy laws, and recommend reworking certain provisions so that they enhance the powers and oversight of the Privacy Commissioner rather than creating a parallel and potentially conflicting regime. I also recommend shifting the authority to prohibit or limit the use of certain technologies in schools to the Minister of Education and to consider the role of public engagement in such decision-making. A summary of recommendations is found at the end of this document.

Schedule 1 - Cybersecurity

The first section of the Enhancing Digital Security and Trust Act (EDSTA) creates a framework for cybersecurity obligations that is largely left to be filled by regulations. Those regulations may also provide for the adoption of standards. The Minister will be empowered to issue mandatory Directives to one or more public sector entities. There is little detail provided as to what any specific obligations might be, although section 2(1)(a) refers to a requirement to develop and implement “programs for ensuring cybersecurity” and s. 2(1)(c) anticipates requirements on public sector entities to submit reports to the minister regarding cyber security incidents. Beyond this, details are left to regulations. These details may relate to roles and responsibilities, reporting requirements, education and awareness measures, response and recovery measures, and oversight.

The broad definition of a “public sector entity” to which these obligations apply includes hospitals, school boards, government ministries, and a wide range of agencies, boards and commissions at the provincial and municipal level. This scope is important, given the significance of cybersecurity concerns.

Although there is scant detail in Bill 194 regarding actual cyber security requirements, this manner of proceeding seems reasonable given the very dynamic cybersecurity landscape. A combination of regulations and standards will likely provide greater flexibility in a changeable context. Cybersecurity is clearly in the public interest and requires setting rules and requirements with appropriate training and oversight. This portion of Bill 194 would create a framework for doing this. This seems like a reasonable way to address public sector cybersecurity, although, of course, the effectiveness will depend upon the timeliness and the content of any regulations.

Schedule 1 – Use of Artificial Intelligence Systems

Schedule 1 of Bill 194 also contains a series of provisions that address the use of AI systems in the public sector. These will apply to AI systems that meet a definition that maps onto the Organization for Economic Co-operation and Development (OECD) definition. Since this definition is one to which many others are being harmonized (including a proposed amendment to the federal AI and Data Act, and the EU AI Act), this seems appropriate. The Bill goes on to indicate that the use of an AI system in the public sector includes the use of a system that is publicly available, that is developed or procured by the public sector, or that is developed by a third party on behalf of the public sector. This is an important clarification. It means, for example, that the obligations under the Act could apply to the use of general-purpose AI that is embedded within workplace software, as well as purpose-built systems.

Although the AI provisions in Bill 194 will apply to “public service entities” – defined broadly in the Bill to include hospitals and school boards as well as both federal and municipal boards, agencies and commissions – the AI provisions will only apply to a public sector entity that is “prescribed for the purposes of this section if they use or intend to use an artificial intelligence system in prescribed circumstances” (s. 5(1)). The regulations also might apply to some systems (e.g., general purpose AI) only when they are being used for a particular purpose (e.g., summarizing or preparing materials used to support decision-making). Thus, while potentially quite broad in scope, the actual impact will depend on which public sector entities – and which circumstances – are prescribed in the regulations.

Section 5(2) of Bill 194 will require a public sector entity to which the legislation applies to provide information to the public about the use of an AI system, but the details of that information are left to regulations. Similarly, there is a requirement in s. 5(3) to develop and implement an accountability framework, but the necessary elements of the framework are left to regulations. Under s. 5(4) a public sector entity to which the Act applies will have to take steps to manage risks in accordance with regulations. It may be that the regulations will be tailored to different types of systems posing different levels of risk, so some of this detail would be overwhelming and inflexible if included in the law itself. However, it is important to underline just how much of the normative weight of this law depends on regulations.

Bill 194 will also make it possible for the government, through regulations, to prohibit certain uses of AI systems (s. 5(6) and s. 7(f) and (g)). Interestingly, what is contemplated is not a ban on particular AI systems (e.g., facial recognition technologies (FRT)); rather, it is potential ban on particular uses of those technologies (e.g., FRT in public spaces). Since the same technology can have uses that are beneficial in some contexts but rights-infringing in others, this flexibility is important. Further, the ability to ban certain uses of FRT on a province-wide basis, including at the municipal level, allows for consistency across the province when it comes to issues of fundamental rights.

Section 6 of the bill provides for human oversight of AI systems. Such a requirement would exist only when a public entity uses an AI system in circumstances set out in the regulations. The obligation will require oversight in accordance with the regulations and may include additional transparency obligations. Essentially, the regulations will be used to customize obligations relating to specific systems or uses of AI for particular purposes.

Like the cybersecurity measures, the AI provisions in Bill 194 leave almost all details to regulations. Although I have indicated that this is an appropriate way to address cybersecurity concerns, it may be less appropriate for AI systems. Cybersecurity is a highly technical area where measures must adapt to a rapidly evolving security landscape. In the cybersecurity context, the public interest is in the protection of personal information and government digital and data infrastructures. Risks are either internal (having to do with properly training and managing personnel) or adversarial (where the need is for good security measures to be in place). The goal is to put in place measures that will ensure that the government’s digital systems are robust and secure. This can be done via regulations and standards.

By contrast, the risks with AI systems will flow from decisions to deploy them, their choice and design, the data used to train the systems, and their ongoing assessment and monitoring. Flaws at any of these stages can lead to errors or poor functioning that can adversely impact a broad range of individuals and organizations who may interact with government via these systems. For example, an AI chatbot that provides information to the public about benefits or services, or an automated decision-making system for applications by individuals or businesses for benefits or services, interacts with and impacts the public in a very direct way. Some flaws may lead to discriminatory outcomes that violate human rights legislation or the Charter. Others may adversely impact privacy. Errors in output can lead to improperly denied (or allocated) benefits or services, or to confusion and frustration. There is therefore a much more direct impact on the public, with effects on both groups and individuals. There are also important issues of transparency and trust. This web of considerations makes it less appropriate to leave the governance of AI systems entirely to regulations. The legislation should, at the very least, set out the principles that will guide and shape those regulations. The Ministry of Public and Business Service Delivery has already put considerable work into developing a Trustworthy AI Framework and a set of (beta) principles. This work could be used to inform guiding principles in the statute.

Currently, the guiding principles for the whole of Bill 194 are found in the preamble. Only one of these directly relates to the AI portion of the bill, and it states that “artificial intelligence systems in the public sector should be used in a responsible, transparent, accountable and secure manner that benefits the people of Ontario while protecting privacy”. Interestingly, this statement only partly aligns with the province’s own beta Principles for Ethical Use of AI. Perhaps most importantly, the second of these principles, “good and fair”, refers to the need to develop systems that respect the “rule of law, human rights, civil liberties, and democratic values”. Currently, Bill 194 is entirely silent with respect to issues of bias and discrimination (which are widely recognized as profoundly important concerns with AI systems, and which have been identified by Ontario’s privacy and human rights commissioners as a concern). At the very least, the preamble to Bill 194 should address these specific concerns. Privacy is clearly not the only human rights consideration at play when it comes to AI systems. The preamble to the federal government’s Bill C-27, which contains the proposed Artificial Intelligence and Data Act, states: “that artificial intelligence systems and other emerging technologies should uphold Canadian norms and values in line with the principles of international human rights law”. The preamble to Bill 194 should similarly address the importance of human rights values in the development and deployment of AI systems for the broader public sector.

In addition, the bill would benefit from a new provision setting out the purpose of the part dealing with public sector AI. Such a clause would shape the interpretation of the scope of delegated regulation-making power and would provide additional support for a principled approach. This is particularly important where legislation only provides the barest outline of a governance framework.

In this regard, this bill is similar to the original version of the federal AI and Data Act, which was roundly criticized for leaving the bulk of its normative content to the regulation-making process. The provincial government’s justification is likely to be similar to that of the federal government – it is necessary to remain “agile”, and not to bake too much detail into the law regarding such a rapidly evolving technology. Nevertheless, it is still possible to establish principle-based parameters for regulation-making. To do so, this bill should more clearly articulate the principles that guide the adoption and use of AI in the broader public service. A purpose provision could read:

The purpose of this Part is to ensure that artificial intelligence systems adopted and used by public sector entities are developed, adopted, operated and maintained in manner that is transparent and accountable and that respects the privacy and human rights of Ontarians.

Unlike AIDA, the federal statute which will apply to the private sector, Bill 194 is meant to apply to the operations of the broader public service. The flexibility in the framework is a recognition of both the diversity of AI systems, and the diversity of services and activities carried out in this context. It should be noted, however, that this bill does not contemplate any bespoke oversight for public sector AI. There is no provision for a reporting or complaints mechanism for members of the public who have concerns with an AI system. Presumably they will have to complain to the department or agency that operates the AI system. Even then, there is no obvious requirement for the public sector entity to record complaints or to report them for oversight purposes. All of this may be provided for in s. 5(3)’s requirement for an accountability framework, but the details of this have been left to regulation. It is therefore entirely unclear from the text of Bill 194 or what recourse – if any – the public will have when they have problematic encounters with AI systems in the broader public service. Section 5(3) could be amended to read:

5(3) A public sector entity to which this section applies, shall, in accordance with the regulations, develop and implement an accountability framework respecting their use of the artificial intelligence system. At a minimum, such a framework will include:

a) The specification of reporting channels for internal or external complaints or concerns about the operation of the artificial intelligence system;

b) Record-keeping requirements for complaints and concerns raised under subparagraph 5(3)(a), as well as for responses thereto.

Again, although a flexible framework for public sector AI governance may be an important goal, key elements of that framework should be articulated in the legislation.

Schedule 1 – Digital Technology Affecting Individuals Under Age 18

The third part of Schedule 1 addresses digital technology affecting individuals under age 18. This part of Bill 194 applies to children’s aid societies and school boards. Section 9 enables the Lieutenant Governor in Council to make regulations regarding “prescribed digital information relating to individuals under age 18 that is collected, used, retained or disclosed in a prescribed manner”. Significantly, “digital information” is not defined in the Bill.

The references to digital information are puzzling, as it seems to be nothing more than a subset of personal information – which is already governed under both the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) and FIPPA. Personal information is defined in both these statutes as “recorded information about an identifiable individual”. It is hard to see how “digital information relating to individuals under age 18” is not also personal information (which has received an expansive interpretation). If it is meant to be broader, it is not clear how. Further, the activities to which this part of Bill 194 will apply are the “collection, use, retention or disclosure” of such information. These are activities already governed by MFIPPA and FIPPA – which apply to school boards and children’s aid societies respectively. What Bill 194 seems to add is a requirement (in s. 9(b)) to submit reports to the Minister regarding the collection, use, retention and disclosure of such information, as well as the enablement of regulations in s. 9(c) to prohibit collection, use, retention or disclosure of prescribed digital information in prescribed circumstances, for prescribed purposes, or subject to certain conditions. Nonetheless, the overlap with FIPPA and MFIPPA is potentially substantial – so much so, that s. 14 provides that in case of conflict between this Act and any other, the other Act would prevail. What this seems to mean is that FIPPA and MFIPPA will trump the provisions of Bill 194 in case of conflict. Where there is no conflict, the bill seems to create an unnecessary parallel system for governing the personal information of children.

The need for more to be done to protect the personal information of children and youth in the public school system is clear. In fact, this is a strategic priority of the current Information and Privacy Commissioner (IPC), whose office has recently released a Digital Charter for public schools setting out voluntary commitments that would improve children’s privacy. The IPC is already engaged in this area. Not only does the IPC have the necessary expertise in the area of privacy law, the IPC is also able to provide guidance, accountability and independent oversight. In any event, since the IPC will still have oversight over the privacy practices of children’s aid societies and school boards notwithstanding Bill 194, the new system will mean that these entities will have to comply with regulations set by the Minister on the one hand, and the provisions of FIPPA and MFIPPA on the other. The fact that conflicts between the two regimes will be resolved in favour of privacy legislation means that it is even conceivable that the regulations could set requirements or standards that are lower than what is required under FIPPA or MFIPPA – creating an unnecessarily confusing and misleading system.

Another odd feature of the scheme is that Bill 194 will require “reports to be submitted to the Minister or a specified individual in respect of the collection, use, retention and disclosure” of digital information relating to children or youth (s. 9(b)). It is possible that the regulations will specify that it is the Privacy Commissioner to whom the reports should be submitted. If it is, then it is once again difficult to see why a parallel regime is being created. If it is not, then the Commissioner will be continuing her oversight of privacy in schools and children’s aid societies without access to all the relevant data that might be available.

It seems as if Bill 194 contemplates two separate sets of measures. One addresses the proper governance of the digital personal information of children and youth in schools and children’s aid societies. This is a matter for the Privacy Commissioner, who should be given any additional powers she requires to fulfil the government’s objectives. Sections 9 and 10 of Bill 194 could be incorporated into FIPPA and MFIPPA, with modifications to require reporting to the Privacy Commissioner. This would automatically bring oversight and review under the authority of the Privacy Commissioner. The second objective of the bill seems to be to provide the government with the opportunity to issue directives regarding the use of certain technologies in the classroom or by school boards. This is not unreasonable, but it is something that should be under the authority of the Minister of Education (not the Minister of Public and Business Service Delivery). It is also something that might benefit from a more open and consultative process. I would recommend that the framework be reworked accordingly.

Schedule 2: FIPPA Amendments

Schedule 2 consists of amendments to the Freedom of Information and Protection of Privacy Act. These are important amendments that will introduce data breach notification and reporting requirements for public sector entities in Ontario that are governed by FIPPA (although, interestingly, not those covered by MFIPPA). For example, a new s. 34(2)(c.1) will require the head of an institution to include in their annual report to the Commissioner “the number of thefts, losses or unauthorized uses or disclosures of personal information recorded under subsection 40.1”. The new subsection 40.1(8) will require the head of an institution to keep a record of any such data breach. Where a data breach reaches the threshold of creating a “real risk that a significant harm to an individual would result” (or where any other circumstances prescribed in regulations exist), a separate report shall be made to the Commissioner under s. 40.1(1). This report must be made “as soon as feasible” after it has been determined that the breach has taken place (s. 40.1(2)). New regulations will specify the form and contents of the report. There is a separate requirement for the head of the institution to notify individuals affected by any breach that reaches the threshold of a real risk of significant harm (s. 40.1(3)). The notification to the individual will have to contain, along with any prescribed information, a statement that the individual is entitled to file a complaint with the Commissioner with respect to the breach, and the individual will have one year to do so (ss. 40.1(4) and (5)). The amendments also identify the factors relevant in determining if there is a real risk of significant harm (s. 40.1(7)).

The proposed amendments also provide for a review by the Commissioner of the information practices of an institution where a complaint has been filed under s. 40.1(4), or where the Commissioner “has other reason to believe that the requirements of this Part are not being complied with” (s. 49.0.1).) The Commissioner can decide not to review an institution’s practices in circumstances set out in s. 49.0.1(3). Where the Commissioner determines that there has been a contravention of the statutory obligations, she has order-making powers (s. 49.0.1(7)).

Overall, this is a solid and comprehensive scheme for addressing data breaches in the public sector (although it does not extend to those institutions covered by MFIPPA). In addition to the data breach reporting requirements, the proposed amendments will provide for whistleblower protections. They will also specifically enable the Privacy Commissioner to consult with other privacy commissioners (new s. 59(2)), and to coordinate activities, enter into agreements, and to provide for handling “of any complaint in which they are mutually interested.” (s. 59(3)). These are important amendments given that data breaches may cross provincial lines, and Canada’s privacy commissioners have developed strong collaborative relationships to facilitate cooperation and coordination on joint investigations. These provisions make clear that such co-operation is legally sanctioned, which may avoid costly and time-consuming court challenges to the commissioners’ authority to engage in this way.

The amendments also broaden s. 61(1)(a) of FIPPA which currently makes it an offence to wilfully disclose personal information in contravention of the Act. If passed, it will be an offence to wilfully collect, use or disclose information in the same circumstances.

Collectively the proposed FIPPA amendments are timely and important.

Summary of Recommendations:

On artificial intelligence in the broader public sector:

1. Amend the Preamble to Bill 194 to address the importance of human rights values in the development and deployment of AI systems for the broader public sector.

2. Add a purpose section to the AI portion of Bill 194 that reads:

The purpose of this Part is to ensure that artificial intelligence systems adopted and used by public sector entities are developed, adopted, operated and maintained in manner that is transparent and accountable and that respects the privacy and human rights of Ontarians.

3. Amend s. 5(3) to read:

5(3) A public sector entity to which this section applies, shall, in accordance with the regulations, develop and implement an accountability framework respecting their use of the artificial intelligence system. At a minimum, such a framework will include:

a) The specification of reporting channels for internal or external complaints or concerns about the operation of the artificial intelligence system;

b) Record-keeping requirements for complaints and concerns raised under subparagraph 5(3)(a), as well as for responses thereto.

On Digital Technology Affecting Individuals Under Age 18:

1. Incorporate the contents of ss. 9 and 10 into FIPPA and MFIPPA, with the necessary modification to require reporting to the Privacy Commissioner.

2. Give the authority to issue directives regarding the use of certain technologies in the classroom or by school boards to the Minister of Education and ensure that an open and consultative public engagement process is included.