Last December, the Commission d’accès à l’information (the "CAI") rendered three decisions in which it reiterated the rules of the game relating to the collection, use, holding and communication of social insurance numbers ("SIN"), Quebec health-insurance card numbers ("HIN") and driver’s license numbers issued by the Société de l’assurance automobile du Québec.
All public bodies of Québec and all businesses operated in Québec must be familiar with and comply with these rules of the game under pain of penal sanctions or civil prosecutions for compensatory and exemplary damages. We think it is useful to bring these three decisions to your attention.
Public bodies and businesses operated in Québec are subject to the Charter of Human Rights and Freedoms and the Civil Code of Québec: these two legislative texts contain provisions relating to the fundamental right of privacy and the protection of privacy.
In addition, public bodies are subject to the Act respecting Access to documents held by public bodies and the Protection of personal information, whereas businesses operated in Québec are subject to the Act respecting the protection of personal information in the private sector or, in specific cases, the Personal Information Protection and Electronic Documents Act. In all cases, the public body or business must only collect the information which is necessary for it.
The Case of René Comeau v. Bell Mobility
The CAI was seized of a complaint by René Comeau under the Act respecting the protection of personal information in the private sector due to the fact that René Comeau could not obtain the digital PCS service because he did not supply his SIN and driver’s license number. The CAI stated that the complaint was well-founded in part and ordered Bell Mobility not to require the SIN or driver’s license number from new clients in order to obtain digital PCS.
The CAI first recalled that section 5 of the Act respecting the protection of personal information in the private sector imposes two obligations on businesses who establish a file on another person: the information collected must be necessary for the object of the file, and the information must be obtained by lawful means.
Bell Mobility maintained that it was important to collect identifiers, such as the SIN or driver’s license number, in order to verify the potential client’s credit. It’s director of customer relations solemnly affirmed to the CAI as follows:
With respect to "so-called" regular packages, Bell Mobility requests the potential client to sign a contract in which he authorises Bell Mobility to verify his credit history. The client is invited to furnish information which is used to conduct a verification and the contract suggests either the "number of a credit card issued in his name", his "birthday", his "driver’s license number" or his "social insurance number". In the latter two cases, it is clearly specified that this information is optional.
The CAI noted, upon examining the Income Tax Act (ref.: s. 237) that the collection of the SIN is only required for tax purposes. As for the driver’s license number, under the Highway Safety Code (ref.: s. 61), the holder thereof is only required to furnish it at the request of a peace officer or the Société d’assurance automobile, and only for purposes of highway safety.
The CAI did not specifically rule on the legitimacy of conducting a credit verification: it limited itself to a finding that the SIN and driver’s license number cannot be required for this purpose.
The Case of Jocelyn Moses v. Caisse Populaire Notre-Dame-de-la-Garde
The CAI was seized of a complaint by Jocelyn Moses under the Act respecting the protection of personal information in the private sector due to the fact that the Caisse populaire illegally demanded to photocopy his driver’s license and health-insurance card upon the opening of an account at the Caisse. The CAI stated that the complaint was well-founded and ordered the respondent not to require health-insurance cards and driver’s licenses from new members when accounts are opened.
The Caisse populaire stated:
[…]due to the nature of the transactions of a caisse populaire, the identification of the member is paramount for its security and the legitimacy of its transactions. […] When opening an account, caisses populaires must request one or two pieces of identification which can include, at the applicant’s option […]:
It also added that the Regulations to Combat the Laundering of Proceeds of Crime, under federal jurisdiction, enabled it, in particular, to verify the identity of the person doing business with it. Paragraph 11(1)(a) of this regulation provides:
11. (1) Subject to section 12:
a) every person referred to in any of paragraph 3(b) of these Regulations and paragraphs 3(a), (b) and (d) to (e.1) of the Act shall ascertain the identity of every individual who signs a signature card in respect of an account with that person, unless, in respect of a corporate account the signature card of which is signed by more than three individuals, the person has ascertained the identity of at least three individuals who signed the card after the coming into force of these Regulations and who remain authorized to act in respect of the account; […].
The CAI first stated the fact that section 11 of the federal regulation speaks about ascertaining the identity of every individual and not about the production and collection of identifiers.
The CAI reiterated the two obligations resulting from section 5 of the Act respecting the protection of personal information in the private sector: collection limited to that which is necessary, and collection by lawful means. The evidence adduced did not show the necessary nature of the information collected.
Finally, the CAI referred to section 9.0.0.1 of the Health Insurance Act and section 61 of the Highway Safety Code which respectively provide as follows:
9.0.0.1. No person may be required to produce a health insurance card or eligibility card except for purposes relating to the dispensing of services or the provision of goods or resources in the field of health or social services where all or part of the cost of those services, goods or resources is assumed, directly or indirectly, by the Government pursuant to an Act for the administration of which the Minister of Health and Social Services is responsible.
61. The Société shall issue the following licences to drive road vehicles: learner's licences, probationary licences, driver's licences and restricted licences.
The holder of a licence cannot be required to produce his licence except where so required by a peace officer or by the Société for the purposes of highway safety.
It should be noted that the CAI did not state that any other collection of identifiers is illegal; the evidence adduced likely did not permit it to comment on this hypothesis. In this regard, it wrote:
It has not been shown, upon the opening of an account with the respondent, that it gave the complainant another alternative than to submit the two pieces of I.D. which he was asked to provide.
The Case of Claude Delaney v. Les Associés, services financiers du Canada Limitée
The CAI was seized of a complaint by Claude Delaney under the Act respecting the protection of personal information in the private sector due to the fact that Les Associés, services financiers du Canada Limitée illegally refused to process his application for the position of "starting manager" because he refused to disclose his SIN to it and sign an authorization permitting it to conduct a credit investigation in connection with its pre-hiring process. This complaint involves two issues: the collection of the SIN and the credit investigation. The CAI stated that the complaint was well-founded in respect of both issues and ordered the respondent not to request the social insurance card number from potential applicants for the position of "starting manager".
The company maintained that due to the nature of its activities, it required all of its employees to have a personal file indicating an excellent credit rating. To determine this rating, it was therefore necessary that Claude Delaney, an applicant for employment, authorize it to conduct various verifications including a request for a credit report from the agency Equifax. To this end, and to ensure that Equifax targeted the right applicant, it was preferable that the SIN be provided.
Claude Delaney refused to consent to the request for the SIN believing that there was no connection between the collection of his SIN, the credit investigation by Equifax and the duties he would have held within the company.
The collection of the SIN
The CAI recalled the sections of the Act respecting the protection of personal information in the private sector that are relevant to examining a complaint, namely sections 2, 5 and 9. These sections establish that personal information may not be collected or required unless it is necessary.
The CAI reproduced the definition of the word "necessary" proposed by Le Petit Larousse illustré:
[Translation] Necessary. 1. Something which one absolutely needs; essential, paramount. […] 2. Something which one cannot do without; indispensable. […] 3. Required for something to happen […] 4. a. Something which is impossible to prevent; inescapable, inevitable, mandatory […] b. Something which cannot occur within given conditions as part of a given process […].
The CAI wrote that the respondent did not show that the collection of the SIN was necessary to examine the candidacy in light of the employment applied for.
The CAI referred to section 237 of the Income Tax Act, which clearly illustrates that the SIN can only be required for tax purposes.
The CAI added as follows:
The Commission believes that the social insurance number is not necessary for the employer at the pre-hiring stage, i.e. in a file involving the selection of a candidate for a specific position. The said information is only necessary for the employer in our view when the employment is confirmed, in order to satisfy the tax laws.
The credit investigation
The necessity of this investigation was not proven and the complaint in this regard was well-founded.
Based on what was written by the CAI, the evidence adduced seems to have been vague and very general. The respondent apparently did not adduce specific evidence to explain why the investigation had to be conducted and why the selection criterion of a "good credit rating" was a feature required by the employment.
On this aspect of the complaint, the CAI consequently wrote as follows:
The respondent has not shown the essential and necessary nature of conducting a credit study for the position of "starting manager" prior to the verification of his ability to assume the position. The need to "filter the type of employees that our organization wishes to hire" relied on by the respondent in no way shows that it is necessary to obtain the said information for a particular post and gives the applicant no option for reassuring his prospective employer.
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