Does the Quebec privacy act take precedence over other statutes in Quebec?
What happens if the privacy provisions of the Civil Code of Quebec apply as well?
In this article, we will evaluate the application of the Quebec privacy act over other statutes in Quebec to determine which one will take precedence.
Ready?
Let’s dive in.
Quebec privacy act: specific legislation on privacy
The purpose of the Quebec privacy act, the Act respecting the protection of personal information in the private sector, is to establish specific rules for an individual to exercise his or her rights as outlined in the Civil Code of Quebec.
Article 1 of the Quebec privacy act states:
“The object of this Act is to establish, for the exercise of the rights conferred by articles 35 to 40 of the Civil Code concerning the protection of personal information, particular rules with respect to personal information relating to other persons which a person collects, holds, uses or communicates to third persons in the course of carrying on an enterprise within the meaning of article 1525 of the Civil Code.”
The objective is clear: to provide for “particular rules” with respect to how companies and persons must collect, hold, use and communicate personal information.
Civil Code of Quebec: General legislation on privacy
Articles 35 to 40 of the Civil Code of Quebec provide general rules with respect to the respect of a person’s reputation and privacy.
Let’s go over each of the articles.
Right to the respect of privacy
Article 35 of the Civil Code states that every person has the right to the respect of his or her reputation and privacy.
The Civil Code adds that a person’s privacy cannot be invaded without the person’s consent or in a manner specifically authorized by the law.
Invasion of privacy
Article 36 of the Civil Code qualifies certain acts that may be considered as an invasion of privacy.
The following acts are considered as an invasion of privacy:
- Entering or taking anything in someone’s dwelling
- Intentionally intercepting or using private communications
- Appropriating or using a person’s image or voice in his or her private premises
- Observing someone’s private life using any means
- Using someone’s name, image, likeness or voice for any purposes other than information of the public
- Using a person’s correspondence, manuscripts or other personal documents
Establishing a file on a person
Article 37 of the Civil Code provides more detail as to how a person can establish a file on another.
It’s worth looking at Article 37 in detail:
“Every person who establishes a file on another person shall have a serious and legitimate reason for doing so. He may gather only information which is relevant to the stated objective of the file, and may not, without the consent of the person concerned or authorization by law, communicate such information to third persons or use it for purposes that are inconsistent with the purposes for which the file was established. In addition, he may not, when establishing or using the file, otherwise invade the privacy or injure the reputation of the person concerned.”
Essentially, a person cannot establish a file on another without a serious and legitimate reason.
The principle of legitimate interest is one of the four data protection and privacy principles under the Quebec privacy act.
A person can only gather the information that is relevant for the intended purpose and cannot disclose or share the information with another person unless the individual has given consent to that effect.
Right of access
Article 38 of the Civil Code outlines that an individual has the right to access his or her information, free of charge.
This is the principle of the right of access to personal information.
In addition, a person may require the rectification of a file kept on him or her by another person if that information is used to make decisions about him or to inform a third party.
Access to file cannot be denied
Under the Civil Code of Quebec, access to a file cannot be denied.
In other words, a person cannot be denied access to his or her personal information if another person holds or has gathered personal information on that person.
The only exception to this rule is if there are serious and legitimate reasons for denying access or unless the information may seriously injure a third party.
Right to rectification
Article 40 of the Civil Code outlines that a person has the right to demand the correction of inaccurate, incomplete or equivocal information.
Any information that is obsolete should also be deleted.
Precedence of the Quebec privacy act over the Civil Code
In general, the Quebec privacy act must take precedence over the Civil Code of Quebec although it has a few provisions dealing with privacy, consent and individuals rights.
In the matter Boyer vs. Société des Casinos du Québec inc., [1997] CAI 345, the Commission de l’accès à l’information (CAI) ruled that the abuse of right theory under the Civil Code cannot be invoked to refuse a person access to their personal information when the person has a right of access under the Quebec privacy act.
This decision establishes that when the Quebec privacy law applies, it will take precedence over other statutes of more general nature such as the Civil Code of Quebec.
In Monette vs. Westbury Canadienne, compagnie d’assurance-vie, [1999] CAI 550 (S.C.), CAI rules that the very purpose of the Quebec privacy act is to provide more specific rules with respect to a person’s privacy and the exercise of their right and should override the general rights conferred in the Civil Code of Quebec.
Takeaways
The Civil Code of Quebec is the substantive law in the Province of Quebec governing many aspects in the life of a person, including privacy.
Articles 35 to 40 of the Civil Code outline several rights and obligations associated to a person’s privacy, such as:
- Right to privacy
- Invasion of privacy
- Collection of personal information
- Consent to establish a file on a person
- Right of access to personal information
- Right to rectification of personal information
The Quebec privacy act provides additional rules with respect to the exercise of a person’s privacy rights under the Civil Code.
Article 1 of the Quebec privacy act makes it clear that:
“The object of this Act is to establish, for the exercise of the rights conferred by articles 35 to 40 of the Civil Code”
In the event of a privacy incident or issue, does the Civil Code apply or the Quebec privacy act?
In essence, if the Quebec privacy act applies to the privacy incident or issue in accordance with its material and territorial provisions, then the specific rules applicable in the Quebec privacy act must apply over other more general statutes.
As such, the specific rules of the Quebec privacy act will take precedence over the general privacy framework provided under the Civil Code of Quebec.
