Genealogy and the Law in Canada. Margaret Ann Wilkinson

legislation, when the “commercial activity” is undertaken — because that activity would require adherence to all the provisions of the personal data protection legislation that will be discussed here in connection with the activities of professional genealogists. Turning unpaid, hobby genealogy into a book should not require the amateur genealogist to adhere to the requirements of the personal data protection statutes because journalistic and literary efforts are exempted from personal data protection law.

      As discussed in Chapter 1, both amateur and professional genealogists, in their efforts to locate sources, may be affected by the personal data protection requirements placed on the individuals and organizations from which they seek information. On the other hand, in their own information-handling practices, although amateur genealogists do not need to comply with this type of legislation while working with information in their own hands as they undertake their own genealogical research, professional genealogists do.

      Personal data protection legislation is an area of law that is relatively new in Canada. Over approximately the past quarter-century, public sector organizations such as hospitals, schools, government offices, and many Crown corporations and police forces have become subject to laws protecting information about personally identifiable individuals. Genealogists have increasingly encountered this phenomenon when seeking information about individuals from such sources and, as described in Chapter 1, will continue to do so.

      At the same time, this increasing protection of personally identifiable information held by public sector organizations has been paired in all cases with access legislation. This means that these same public organizations are required to give members of the public access to information — unless the information concerns personally identifiable individuals or is subject to other legislated exceptions that would compel or permit the organization to keep the information a secret. Thus, personal data protection legislation, often referred to as privacy legislation, has evolved in Canada mostly in the context of an overall environment of governments providing access to information held in public sector organizations.

      There are no access-to-information rights applicable in the private sector as exist in the public sector. Private sector organizations and individuals can choose, at their own option, whether and when to provide or withhold information that an outsider might request. There is, however, increasingly a requirement (mentioned in Chapter 1) that organizations, and especially businesses, in the private sector provide personal data protection.

      Since private sector organizations are not required to provide access to information and since personal data protection legislation generally requires businesses to prevent personal data from leaving the organization (except to the person who is the subject of the information), genealogists generally are experiencing an overall reluctance by private sector organizations to give out information.

      This chapter deals not with the experience of genealogists in getting other organizations to provide information but with the legal requirements that are now placed upon how the professional genealogist handles her or his own information related to genealogy throughout every aspect of her or his research. The discussion will focus on the provisions of the federal PIPEDA, both because most of the country is governed by PIPEDA and because Ontario, home of the Ontario Genealogical Society, is governed by PIPEDA. Professional genealogists in Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, and the three territories would also look to PIPEDA. The structure of the personal data protection legislation applying to the private sector in the other three Canadian jurisdictions is very like the structure of PIPEDA. Professional genealogists in Alberta will look to its Personal Information Protection Act and in British Columbia to its Personal Information Protection Act.

      Professional genealogists in Quebec will be governed by An Act Respecting the Protection of Personal Information in the Privacy Sector. This statute provides that its object

      is to establish, for the exercise of the rights conferred by articles 35 to 40 of the Civil Code of Quebec 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 with the meaning of article 1525 of the Civil Code of Quebec.¹

      However, in the only direct reference to genealogy in any personal data protection statute in Canada, the Quebec statute provides further that “[t]his Act does not apply to journalistic, historical or genealogical material collected, held, used or communicated for the legitimate information of the public.” It might at first glance seem, then, that professional genealogists in Quebec need not conform to the requirements of An Act Respecting the Protection of Personal Information in the Private Sector — but, on second consideration, this latter phrase (“for the legitimate information of the public”) should give professional genealogists pause before assuming that they are not subject to Quebec’s private sector personal data protection statute. In completing a genealogy for a private client, it would seem very difficult to argue that the genealogical material gathered by the Quebec professional genealogist was done for the information of the public rather than as a purely private commissioned activity.