Genealogy and the Law in Canada. Margaret Ann Wilkinson
rel="nofollow" href="http://www.theglobeandmail.com/news/national/opening-adoption-records-in-ontario-prompts-few-requests-for-secrecy/article1152431">www.theglobeandmail.com/news/national/opening-adoption-records-in-ontario-prompts-few-requests-for-secrecy/article1152431.
Another area of the law where general personal data protection legislation has been overridden in some instances by specific statutory provisions is in the context of adoption records. In June 2009, Ontario’s new Access to Adoption Records Act came into force. The act dramatically alters the data protection environment for these records in Ontario, bringing it into line with similar laws already in place in British Columbia, Alberta, Manitoba, and Newfoundland and Labrador. This legislation allows birth parents and adopted children access to previously inaccessible, “sealed” adoption records so they can locate each other.
Patchwork Problems in Other Countries
An editorial in a U.S.-based Jewish genealogical association newsletter details similar problems with patchwork legislation in the United States. Concerned with the limited access to information inherent in data protection laws, it discusses whether enforcement techniques often only hinder honest attempts to access data while doing little against determined illegal access. Detailing a personal experience of the author, two branches of a family, separated during the Holocaust, were reunited because of information available in California. If the family had lived in New Jersey, on the other hand, the discovery of the missing family members would never have occurred because New Jersey has stricter data protection legislation. 11
Paradoxically, this legislation may make it easier for children and parents involved in adoptions to locate their parents and children, respectively, than for children and parents not involved in adoptions to locate each other once they have lost track of each other.
Records Held in the Private Sector
Until 2004, personal data protection legislation in Canada (except Quebec) affected only government bodies. In 2004, a new piece of legislation, which the federal government had passed in 2001, came into full effect: the Personal Information Protection and Electronic Documents Act [PIPEDA]. This statute has signalled a new era in Canada — personal data protection is now an obligation imposed on private sector organizations as well as on public sector ones. Indeed, because PIPEDA applies to all organizations engaged in commercial activities, it is possible that we now have a greater scope for personal data protection in the private sector in Canada than in the public. This situation will probably not persist for long. In Ontario, for example, universities were originally not covered by either the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act but the McGuinty provincial government (elected in 2003, re-elected in 2007) brought them all under the Freedom of Information and Protection of Privacy Act in 2006.
There is no corresponding access legislation covering information held in private sector organizations. This means that, although private sector organizations are legally obliged to protect information about identifiable individuals, there is no requirement on a private sector organization in Canada, even after personal data protection time periods have expired, to make any information available to anyone. This will probably signal a general tightening up for genealogists of information held by private sector organizations in Canada.
Federally regulated businesses in Canada, such as airlines and those in the banking industry, as well as businesses in certain provinces and territories (the Maritimes, Saskatchewan, Manitoba, and Ontario) must comply with PIPEDA. Because the constitutional ability of our federal Parliament to pass such a sweeping statute governing the whole business sector in Canada is in some doubt, the federal government has left room for the provinces to pass their own, similar, legislation for the private sector. Quebec already had such legislation, which has been deemed equivalent to PIPEDA. British Columbia and Alberta have followed suit with their own statutes, also deemed equivalent. Thus private sector organizations in Quebec, British Columbia, and Alberta must generally comply with their respective provincial statutes and not with PIPEDA.
Health information is a particular category of personal information that has fallen under a variety of provincial laws as well as, in some respects, under PIPEDA. This is an area of changing laws in Canada and genealogists may wish to keep up to date on changes in this area in the future. (An excellent source is the website of the Privacy Commissioner of Canada at www.priv.gc.ca/index_e.cfm.) Some provinces have enacted specific legislation to deal with personal health information.
Provincial Health Information Legislation
Alberta: Health Information Act, R.S.A. 2000, c. H-5
British Columbia: E-Health (Personal Health Information Access and Protection of Privacy) Act, S.B.C. 2008, c. 38
Manitoba: Personal Health Information Act, C.C.S.M., c. PP33.5
Newfoundland and Labrador: Personal Health Information Act, S.N.L. 2008, c. P-7.01 (not in force as of June 2009)
Ontario: Personal Health Information Act, 2004, S.O. 2004, c. 3, Sch. A
Saskatchewan: Health Information Protection Act, S.S. 1999, c. H-0.021
• In Ontario, the Personal Health Information Protection Act [PHIPA] is specific legislation passed by the Ontario Legislature that has also been approved by the federal government as equivalent to PIPEDA for most of the health sector (for health information custodians, as defined in the Ontario statute). Organizations subject to this act need only comply with it and not with the federal PIPEDA.
• In Alberta, there is a Health Information Act that has not been deemed equivalent to PIPEDA at the federal level and so the private sector organizations affected must currently comply with both Alberta’s HIA and PIPEDA. Public sector organizations covered by HIA need comply only with HIA.
• A similar situation to that in Alberta currently exists for Manitoba’s Personal Health Information Act[PHIA], Saskatchewan’s Health Information Protection Act [HIPA], and British Columbia’s E-Health Act (Personal Health Information Access and Protection of Privacy): all have passed and are in effect but are not deemed equivalent to PIPEDA. Thus private sector health organizations in Manitoba, Saskatchewan, and British Columbia need to comply both with the provincial health information legislation and PIPEDA while public sector organizations are governed only by the provincial health information legislation.
• Newfoundland and Labrador has passed a statute, the Personal Health Information Act, that has not yet come into force (and has not been deemed equivalent to PIPEDA by the federal government) but, when it does come into force in Newfoundland and Labrador, both it and PIPEDA will have an effect on genealogists seeking certain materials from that province.
All this legislation is relevant to those genealogists who might be searching for hospital records. I have been asked questions by people, for example, seeking to know whether their relatives have spent time in the tuberculosis sanitariums in Ontario. In general, because of this legislation and older law relating to medical records, such information is only available to patients (and, in some cases, their legal representatives).
Access, Privacy, and Genealogical Research
If you are trying to find out about someone and you know that a number of public and private sector organizations in Canada may hold information about this person, you can apply to any organization that you believe might have records, any selection of them, or all of them. It is a common practice to apply to more than one organization. Since personal data protection and access legislation differs from province to province and between territories and federal legislation, what is not released to you from one organization may be made available to you from another. You may not get the original letter from the organization that holds it, but you may get a copy of it from another.
In most jurisdictions, if you are acting