Vol. 148, No. 12 — June 4, 2014

Registration

SOR/2014-117 May 16, 2014

DEPARTMENT OF EMPLOYMENT AND SOCIAL DEVELOPMENT ACT

Electronic Documents and Electronic Information Regulations

P.C. 2014-572 May 15, 2014

His Excellency the Governor General in Council, on the recommendation of the Minister of Employment and Social Development, pursuant to sections 70.1 (see footnote a), 71 (see footnote b), 72 (see footnote c) and 73 (see footnote d) of the Department of Employment and Social Development Act (see footnote e), makes the annexed Electronic Documents and Electronic Information Regulations.

ELECTRONIC DOCUMENTS AND ELECTRONIC INFORMATION REGULATIONS

INTERPRETATION

Definitions

1. (1) The following definitions apply in these Regulations.

“conversion”
« conversion »

“conversion” means the process of changing a document or information from one medium to another or from one format to another and includes migration.

“electronic”
« électronique »

“electronic” means what is created, recorded, transmitted or stored in digital or any other intangible form by an electronic, digital, magnetic, optical, biometric or other technological means, or a combination of any of those means that has similar capabilities for creation, recording, transmission or storage.

“electronic signature”
« signature électronique »

“electronic signature” means

“migration”
« migration »

“migration” means the process of transferring any electronic document or electronic information from one software or hardware environment or storage medium to another software or hardware environment or storage medium with minimal or no alteration of structure and no alteration in content and context.

“recipient”
« destinataire »

“recipient” means the person or entity to which any electronic document or electronic information is sent by the Minister or the Commission.

Interpretation

(2) For the purposes of these Regulations, a reference to the Minister includes the Minister of Labour in respect of any program, legislation, policy or activity the administration or enforcement of which is the responsibility of the Minister of Labour.

SENDING AND RECEIVING OF ELECTRONIC DOCUMENTS OR ELECTRONIC INFORMATION

Presumption — sent by Minister or Commission

2. An electronic document or electronic information sent by the Minister or the Commission is deemed to be sent on the date and at the hour when the document or the information

Presumption — received by recipient

3. (1) Subject to subsection (2), an electronic document or electronic information is deemed to be received, if the recipient has designated or uses an electronic system for the purpose of receiving an electronic document or electronic information of the type sent, on the date and at the hour when the document or the information enters that electronic system and becomes capable of being retrieved and processed.

Presumption not applicable

(2) An electronic document or electronic information is deemed to be capable of being retrieved and processed by the recipient unless the recipient notifies the Minister or the Commission, within a reasonable period of time, that the document or the information could not be retrieved or processed.

Presumption — received by Minister or Commission

4. (1) An electronic document or electronic information is deemed to be received by the Minister or the Commission on the date and at the hour indicated by the Minister’s or the Commission’s electronic system designated for that purpose.

Presumption not applicable

(2) If the electronic document or the electronic information is not capable of being retrieved or processed by the Minister or the Commission, it may be deemed not to be received by the Minister or the Commission.

Multiple documents sent in same transmission

5. Electronic documents or electronic information sent to the Minister or the Commission in the same transmission is deemed to be received at the same time, on the date and at the hour referred to in subsection 4(1).

Proof

6. Proof of the date and the hour when an electronic document or electronic information is sent or received may be established by any of the following documents or information, providing that the document or the information indicates the date and the hour when it was sent or received:

ELECTRONIC SIGNATURE

Additional requirements respecting electronic signatures

7. In addition to the requirements set out in subsection 72(4) of the Department of Employment and Social Development Act, every electronic signature must reliably

Standard of reliability of electronic signatures

8. The standard of reliability required with respect to any electronic signature must be established taking into account the following factors, including

CONVERSION, RETENTION, ALTERATION AND DESTRUCTION OF DOCUMENTS OR INFORMATION

Conversion

9. (1) Any document or information, including its related metadata, may be converted.

Legal value

(2) Regardless of the technology used, the conversion must be completed in a way that does not compromise the legal value of the document or information and its related metadata.

Conversion documentation

(3) In order to show that the resulting electronic document or electronic information and its related metadata have the same content as the source document or information and its related metadata and that its integrity has not been compromised, the Minister or the Commission must

Rules of evidence

(4) If the source document or information is destroyed, the rules of evidence must not be relied on, to contest the admissibility of a document or information that has been converted and recorded in accordance with this section on the sole ground that the document or information is not in its original format.

Retention of electronic format of document or information

10. A document or information that is created, sent or received by the Minister or the Commission and that must be retained may be retained in an electronic format if

Date and hour retained

11. If details are generated concerning the date and the hour when an electronic document or electronic information is sent or received by the Minister or the Commission, those details must be retained by the Minister or the Commission.

Standard of reliability

12. The standard of reliability required with respect to an electronic document or electronic information must be established in light of the purpose for which the document or the information is created, sent or received by the Minister or the Commission.

Integrity maintained throughout retention period

13. (1) The integrity of an electronic document or electronic information must be maintained throughout the period beginning on the day on which it is created, sent or received by the Minister or the Commission and ending on the day on which the required retention period for the document or the information ends.

Assessment of security measures

(2) The integrity of an electronic document or electronic information must be assessed in light of the security measures that have been applied to

Additional criteria for maintaining integrity

(3) The integrity of an electronic document or electronic information is maintained if it is possible to verify that the document or the information and its related metadata have not been altered, apart from the alterations set out in subsection 14(2), even if the document or the information has been fragmented, compressed or stored for a limited time to increase the efficiency of its transmission.

Presumptions when integrity maintained

(4) An electronic document or electronic information whose integrity has been maintained

Prohibition to alter

14. (1) Subject to subsection (2), a person must not alter an electronic document or electronic information, or any of its related metadata, that is created, sent or received by the Minister or the Commission.

Alteration by authorized persons

(2) A person who is authorized by the Minister or the Commission may alter an electronic document or electronic information or any of its related metadata if the details of each alteration, including the date and the hour when the alteration is made and the name of the person who is making it, are recorded in an unalterable record.

End of retention period — destruction

15. When the retention period for an electronic document or electronic information ends, the document or the information may be destroyed, subject to section 12 of the Library and Archives of Canada Act, if the details of each destruction are recorded in an audit log or in a similar document that identifies the following elements, including

COMING INTO FORCE

Registration

16. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

In response to Canadians’ rising expectations to interact electronically with the Government, administrative pressures related to an aging population and the need for more modern and efficient services to help contain costs, the Department of Employment and Social Development (the Department) is replacing outdated technology and increasing the use of electronic services.

While the Department of Employment and Social Development Act (the DESD Act) provides the authority to conduct business electronically, there were no regulations that established the parameters within which to provide and expand electronic service delivery.

Background

The DESD Act was amended in 2012. The DESD Act provides the Minister of Employment and Social Development with the authority to conduct business electronically with respect to the Canada Pension Plan, the Old Age Security Act, the Employment Insurance Act (the EI Act) and program areas supported by grants and contributions under section 7 of the DESD Act. The DESD Act also provides the Canada Employment Insurance Commission (the Commission) with the authority to conduct business electronically for the EI Act.

The DESD Act was subsequently amended when the Economic Action Plan 2013 Act, No. 2 received Royal Assent on December 12, 2013, to provide the Minister of Employment and Social Development with the authority to conduct business electronically for the Canada Student Loans Program and the Temporary Foreign Worker Program. The DESD Act now also provides the Minister of Labour with the authority to conduct business electronically for programs under the Canada Labour Code.

Objective

The objective of the Electronic Documents and Electronic Information Regulations (the Regulations) is to support the implementation of more electronic services in a consistent, efficient and secure manner.

Description

The Regulations set out the specific parameters for each of the three parts that constitute the Regulations: Sending and Receiving of Electronic Documents or Electronic Information; Electronic Signature; and Conversion, Retention, Alteration and Destruction of Documents or Information.

Sending and receiving of electronic documents or electronic information

The Regulations establish when an electronic document or electronic information is considered sent or received. They also provide the criteria for what could be used as proof of the date and hour sent or received, for example a transmission slip or an acknowledgement of receipt. Proof of the date and hour an electronic document or electronic information is sent or received is required specifically for time-sensitive cases, for example when a person is applying for a pension or benefits.

When both the recipient and the ministers (the Minister of Employment and Social Development and the Minister of Labour) or Commission use the same electronic system to communicate, such as the Department’s “My Service Canada Account,” the Regulations provide that the electronic document or electronic information is considered sent to the recipient on the date and at the hour when it becomes capable of being retrieved and processed. When different electronic systems are being used, the ministers or Commission considers the electronic document or electronic information sent to the recipient when it enters an electronic system that is outside the control of the ministers or Commission. In both cases, unless the recipient notifies the ministers or Commission to the contrary, within a reasonable period of time, the Regulations provide that the date and hour sent is indicated by the ministers’ or Commission’s designated system.

When the ministers or Commission is receiving electronic documents or electronic information in the same transmission, the Regulations establish that the electronic documents or electronic information are considered received at the same time by the ministers or Commission on the date and hour indicated by the ministers’ or Commission’s designated system. If the ministers or Commission cannot retrieve or process an electronic document or electronic information, the Regulations provide that the electronic document or electronic information may be considered not received.

Electronic signature

The Regulations define electronic signature as a combination of letters, characters, numbers or other symbols in digital form incorporated in, attached to or associated with an electronic document or electronic information, as a secure electronic signature which has the same meaning as in the Personal Information Protection and Electronic Documents Act, or as a signature that results from the application of any technology or process determined by the ministers or the Commission that provides the same level of security as that of a secure electronic signature.

The Regulations require that the electronic signature be reliably linked to the identity of the person who “signed” the electronic document with the electronic signature for the purpose it is required. The Regulations also require that the electronic signature must reliably indicate the person’s intentions with respect to the electronic document or electronic information, for example, if they were applying for a benefit or confirming information. Reliability is established using criteria such as the ability of the ministers or Commission to verify whether any alteration has been made to the electronic signature or to the electronic document after it was “signed.”

Conversion, retention, alteration and destruction of documents or information

The Regulations establish the criteria for the conversion, retention, alteration and destruction of documents or information.

With respect to converting an electronic or non-electronic document, for example from paper to an electronic image, the Regulations establish the criteria for such things as ensuring that the converted document does not lose its legal value. To provide this assurance, the Regulations specify requirements, such as recording the details of the conversion and the quality control associated with the conversion.

The Regulations establish the criteria for electronic retention once a document or information is created, sent or received. If, for example, a non-electronic document was converted and retained, it has to be retained in an electronic format that does not alter its contents. Or, if it was created electronically, the Regulations stipulate that it has to be retained in the same electronic format or in a format that accurately represents the source document. The Regulations also require documents or information that are retained electronically to be readable, that information on the date and hour sent or received be retained, and that the standard of reliability and the integrity of the document or information be maintained. Maintaining the integrity of the document or information requires the ability to verify that the electronic document or electronic information has not been altered, except for any alterations that may be authorized by the ministers or Commission.

When the retention period for an electronic document or electronic information ends, the document or information may be destroyed in accordance with the Library and Archives of Canada Act, as long as the details of the destruction are recorded.

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

The amendments to the DESD Act, including references to electronic services, were announced in Budget 2012. The amendments were included in the Jobs, Growth and Long-term Prosperity Act and were discussed at the House of Commons Standing Committee on Finance and the Standing Senate Committee on National Finance.

While the program areas have been working on specific electronic service offerings with targeted stakeholders, such as employers and not-for-profit organizations, stakeholders and the general public were not directly consulted on the Regulations prior to prepublication. The Regulations were prepublished in the Canada Gazette, Part I, on December 14, 2013, for a period of 30 days. Comments were received regarding how individuals would be notified if either of the ministers or Commission considers a document not to have been received. Program policies and procedures will be developed based on current policies and procedures for communication with clients by paper or electronically. They will provide that, where it is possible to ascertain the identity of the sender, the Department will make reasonable efforts to notify the individual. The Regulations were written to reflect the current presumptions that apply to the delivery of mail, i.e. that something that is sent will be received.

No changes to the Regulations were required as a result of the comments.

Rationale

With the Royal Assent of the Economic Action Plan 2013 Act, No. 2 on December 12, 2013, the scope of the Regulations was expanded. The Regulations now apply to two additional programs in the Department of Employment and Social Development, the Canada Student Loans Program and the Temporary Foreign Worker Program, and to programs under the Canada Labour Code, under the Labour Program. This means that stakeholders wishing to access these programs electronically will be able to do so once the programs are ready to offer electronic services supported by the Regulations. This Regulatory Impact Analysis Statement has been updated since prepublication to reflect the changes made in the Economic Action Plan 2013 Act, No. 2.

While the DESD Act provides the authority to conduct business electronically, there were no regulations that established the parameters within which to provide and expand electronic service delivery. The Regulations create a framework that will allow program areas to expand electronic service delivery in a consistent, efficient and secure manner, which represents an early step in the comprehensive transformation and modernization agenda in the Department. For clients and stakeholders this means having a similar electronic service experience regardless of the program they are using.

To allow for wide applicability across departmental program areas, the Regulations are program and technology neutral to minimize the need for future regulatory changes and enable program areas to adopt the latest technologies.

The Regulations are principle-based rather than prescriptive. This provides program areas with the flexibility to tailor their system requirements and operational policies and procedures to meet program and client needs. For example, the Regulations do not define certain concepts such as “reasonable period of time” in regard to the amount of time a recipient has to notify the ministers or Commission that an electronic document or electronic information cannot be retrieved or processed. This provides the ministers or Commission with the same flexibility to define what is “reasonable” in operational policies and procedures as is currently done with paper documents or information. The generic nature of the Regulations also allows program areas to adopt the latest, most suitable technology that fulfils their requirements and use a standard of reliability for electronic signatures that best matches the purpose for which the electronic signature is used.

When the program areas expand or create electronic services supported by the Regulations, the Department will better meet client expectations for modern service delivery, generate administrative efficiencies and help contain costs through improved business processes and decreased reliance on processing and storing paper.

Implementation, enforcement and service standards

Traditional means, such as contacting the Department by telephone, mail and visiting an in-person Service Canada Centre, remain available to assist people in accessing programs and services.

Operational policies and procedures have to be developed to support implementation of electronic service delivery using the parameters set out in the Regulations. These policies and procedures will address, for example, which designated systems could be used by clients and the ministers or Commission to send and receive electronic documents or electronic information in a secure manner. These policies will evolve as technology changes. Once program areas roll out additional electronic service offerings, they will be subject to the Department’s performance measurement, evaluation and reporting requirements.

Prior to implementing more electronic services, program areas may be required to conduct a Privacy Impact Assessment (PIA) to ensure protection of personal information. PIAs are used to identify and address potential privacy risks by helping to eliminate or reduce those risks to an acceptable level.

Contact

Bev Davis
Director
E-Services Project Team
Processing and Payment Services Branch
Service Canada
355 North River Road
Place Vanier, Tower B
Ottawa, Ontario
K1A 0L1
Telephone: 613-941-5935
Fax: 613-948-5400
Email: bev.davis@servicecanada.gc.ca