Genealogy and the Law in Canada. Margaret Ann Wilkinson
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or executor of a person who has died and you are within the number of years that jurisdiction protects personal data held by organizations, you can insist that the personal information about that person be released to you. You can also help a person to whom information relates to apply to an organization governed by personal data protection legislation for information about her- or himself. You cannot, however, represent yourself as agent for people with whom you have no direct connection. For example, you cannot represent yourself as acting as agent for a granddaughter in applying for information about her just because you are working on a genealogy of your family that includes her.
Curiously there is no provision for a deceased’s legal representative to act after death regarding personal information under PIPEDA. So, it would appear that during the 20 years following an individual’s death that PIPEDA applies to that person, organizations covered by PIPEDA will be unable to release information about that individual to anyone at all (if the record in question is under 100 years old). Under the federal public sector Privacy Act, there is a specific provision providing for access by the deceased’s legally appointed personal representative or executor — but only for purposes of administration of the estate, not for genealogy.
Personal data protection in the public sector in Canada is largely complaint-driven. That is, under the statutes, the person whose information has been wrongly handled by the organization involved can complain. At the federal level and in Ontario, British Columbia, Alberta, Newfoundland and Labrador, and Prince Edward Island there are Commissioners to whom the complaint is made (although in Newfoundland and Labrador, the person concerned can choose to go to court instead of to the Commissioner).
In Quebec, there is a Commission. In Manitoba and New Brunswick complaints are handled through the provinces’ Ombudspersons — but New Brunswick also offers the alternative of going to court. In Nova Scotia, a complaint may be taken either to the Review Officer appointed under its Freedom of Information and Protection of Privacy Act or to court.
At the federal level (and in Manitoba, Saskatchewan, Newfoundland and Labrador, New Brunswick, and Nova Scotia), the Commissioner (or other complaints investigator created under that province’s statute) must investigate the complaint against a public sector organization covered by the legislation but then can only make a recommendation. With respect to the federal Privacy Act, if the public sector organization involved does not comply with the Commissioner’s recommendation, the Commissioner may take the matter to the courts. At the federal level, the Privacy Commissioner is a separate office from the Information Commissioner whereas, in the provinces, the roles are combined. In some cases the federal Privacy Commissioner and the federal Information Commissioner (who is focused on public access to government information) have taken different positions before the Federal Court.
In Alberta, British Columbia, Ontario, Prince Edward Island, and Quebec, the decisions of the Commissioners or other reviewing appointees are final and determinative of the complaint. In these provinces, the courts will only become involved if one of the parties to the complaint formally appeals the decision by the Commissioner or other complaints decision-maker under the statutes (or, of course, in New Brunswick, Newfoundland and Labrador, and Nova Scotia if the complainant decides to go directly to the courts for relief, as mentioned above).
With respect to Ontario’s public sector legislation, the Ontario Commissioner him- or herself has legally binding decision-making power — but the individual involved in making the complaint will not receive direct compensation (that is, money) for breaches of the statute. As is evident from the description here about who decides when a complaint is launched in a given jurisdiction, each province and territory has set up its own mechanism to handle violations of its personal data protection regime or regimes.
The Ontario Commissioner’s Office recently released a decision involving genealogical research.12 The adjudicator found that the names, grades, and dates of students’ attendance at a school are the personal information of the students. As well, the teachers’ names are also personal as part of their employment history. Nevertheless, the information requested that involved students and teachers who died before 1979 was found to not be covered by the Ontario personal data protection legislation and thus would be accessible to a genealogist requesting it from the public sector school board that held it. The adjudicator also dealt with the problem the school board then faced about how to know who had died by 1979 in a large group of photos. The adjudicator looked at life expectancy data produced by Statistics Canada for the relevant period and decided the Board must release, under its legislated access mandate, information on those born before 1919. Endeavouring to gain access to information about those in the pictures born after 1919 as well, the genealogist making the request argued that he was engaged in “research.” The Commissioner’s Office agreed that genealogy is research but held that it did not comply with the statutory conditions of the research exception to personal data protection — that the research meet security and confidentiality conditions — and thus, although engaged in research, the genealogist was not given access to information about students or teachers whose information was still governed by the legislation (those born after 1919).
The federal private sector personal data protection regime, however, legislates different consequences for breach than exist in the federal public sector Privacy Act context we have just mentioned. Under PIPEDA, as under the federal Privacy Act, the federal Privacy Commissioner must investigate the complaint made and must then make a recommendation. However, under PIPEDA, once the report of the Privacy Commissioner has been issued, either the Commissioner or the complainant can take the organization being complained about to the Federal Court. At this point, it is open to the Court, if the complaint is judged to be well-founded, to order, among other things, that the organization involved pay damages (that is, money) to the complainant. This provision makes the risk of non-compliance to a private sector organization governed by PIPEDA different (and some would say, greater) than the risk to public sector organizations in Canada that are governed by public sector personal data protection.
If you are working on genealogy as a private individual, you are not an organization covered by any personal data protection rules in Canada and so you are quite entitled to include information about any individuals, living or dead, in your genealogy once you have the information.This is because PIPEDA does not apply to “any individual in respect of information that the individual collects, uses or discloses for personal or domestic purposes and does not collect, use or disclose for any other purpose.”13 (As discussed earlier, you may be affected by the personal data protection legislation that governs organizations from which you are trying to get information – but once you have information in your possession, you yourself do not have to comply with any personal data protection legislation in your use and dessimination of any information you have.)
Nothing in personal data protection legislation stops you, as an individual working on your own family tree or, as a hobby, on anyone else’s family trees, from publishing your personally created family histories. This assumes, of course, that you avoid libelling the living (see Chapter 5)! It is another paradox in our evolving law about information that you cannot libel dead people but the dead have “privacy” rights under personal data protection regimes in this country for a number of years after death. There may be other legal barriers to publication of your personally created family histories, discussed in Chapter 4 on copyright, if you used commercial software in the creation of the genealogy or include copies of documents created by other parties.
CHAPTER 2 The Business of Genealogy
Genealogy as a Hobby and as a Profession
Genealogists working in Canada who are paid for their efforts have to comply with different legal requirements than those genealogists engaged in the same activities for free. This chapter explains why this difference exists and how “professional” genealogists are affected by legislation that does not apply to their “amateur” counterparts.
An amateur genealogist who turns an unpaid hobby into a commercial activity, such as doing a paid genealogy for a distant relative that relies, at least in part, on the unpaid research done as a hobby, may find that turning