Regulations Amending the Department of Employment and Social Development Regulations: SOR/2019-219

Canada Gazette, Part II, Volume 153, Number 13

Registration

SOR/2019-219 June 17, 2019

DEPARTMENT OF EMPLOYMENT AND SOCIAL DEVELOPMENT ACT

P.C. 2019-794 June 16, 2019

Her Excellency the Governor General in Council, on the recommendation of the Minister of Employment and Social Development, pursuant to paragraph 43(b) footnote a of the Department of Employment and Social Development Act footnote b, makes the annexed Regulations Amending the Department of Employment and Social Development Regulations.

Regulations Amending the Department of Employment and Social Development Regulations

Amendment

1 Section 3 of the Department of Employment and Social Development Regulations footnote 1 is amended by adding “and” at the end of paragraph (i) and by adding the following after paragraph (i):

Coming into Force

2 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

The Labour Program, which is part of Employment and Social Development Canada (ESDC), and the Canadian Transportation Accident Investigation and Safety Board, also known as the Transportation Safety Board of Canada (TSB), have concurrent investigative responsibilities of transportation health and safety occurrences and hazardous occurrences under their respective legislation. The Labour Program’s authority to disclose personal information is governed by the Department of Employment and Social Development Act (DESDA) and the Department of Employment and Social Development Regulations (DESDR). In order to provide for the coordination of the activities of the Labour Program and the TSB with respect to their investigative powers, section 3 of the DESDR is amended to authorize the Labour Program to make available to the TSB personal information for the purpose of assisting the TSB in the administration or enforcement of the Canadian Transportation Accident Investigation Safety Board Act (CTAISB Act).

Background

Privacy and the Labour Program

The Minister of Labour is responsible for the enforcement and administration of Part II (Occupational Health and Safety) of the Canada Labour Code. In fulfilling her mandate, the Minister may, from time to time, authorize investigations and inspections for the purposes of determining whether violations to Part II of the Canada Labour Code have occurred. These inspections and investigations may relate to incidents occurring in the fields of rail, aviation, maritime, or pipeline transportation, which are all additionally under the jurisdiction of the TSB. In some circumstances, powers exercised by the TSB and Labour Program investigators, respectively, may overlap.

Personal information held by the Labour Program is governed by the DESDA and the DESDR, as well as the Privacy Act. The DESDA sets out conditions that go beyond the requirements of the Privacy Act by placing conditions on the release of personal information to third parties, as well as placing specific conditions on the disclosure of personal information obtained, or prepared from information that is obtained, by the Labour Program.

Under subsection 35(1) of the DESDA, ESDC may be authorized to provide information to federal institution for the purpose of administering certain laws or activities, as set out in regulations. For this purpose, section 3 of the DESDR lists nine federal institutions with which ESDC may share personal information (other than information obtained under the Canada Pension Plan or the Old Age Security Act) for prescribed purposes, subject to certain conditions being met.

The TSB

The Chairperson of the TSB is the chief executive officer of the organization and is responsible for its administration. The TSB’s mandate is to advance transportation safety in the marine, pipeline, rail, and aviation modes of transportation by conducting independent investigations, including public inquiries when necessary, into selected transportation occurrences in order to make findings as to their causes and contributing factors; to identify safety deficiencies, as evidenced by transportation occurrences; to make recommendations designed to eliminate or reduce any such safety deficiencies; and to report publicly on its investigations and on its findings in relation thereto.

Each mode of transportation under the TSB has a Director of Investigation. These Directors have exclusive authority to direct and conduct investigations on behalf of the TSB under the CTAISB Act in an effort to ensure transportation safety.

In conducting their investigations of transportation occurrences, the TSB does not assign fault or determine civil or criminal liability. Although the Board conducts a comprehensive investigation of an occurrence, the Board’s findings are not binding on the parties to any legal, disciplinary, or other proceedings.

Objective

The objective of this amendment is to provide authority for the disclosure of personal information obtained, or prepared from information that is obtained, by the Labour Program to the TSB for the purpose of assisting the TSB in the administration or enforcement of the CTAISB Act.

Description

The amendment will add the TSB to the list of federal institutions in section 3 of the DESDR, and enable the Labour Program to make available to the TSB personal information that is obtained, or prepared from information that is obtained, by the Labour Program under its mandate for the purposes of assisting the TSB in the administration or enforcement of the CTAISB Act. Upon the amendment of the regulations, ESDC will enter into an information-sharing agreement (ISA) with the TSB to set out the purposes, modalities and protections relating to the information to be shared.

Regulatory development

Consultation

The Office of the Privacy Commissioner of Canada was informed of the amendment. They did not have any comments or concerns.

As the amendment is considered to be low impact and does not impose any obligations on stakeholders external to the government, it was determined that formal stakeholder consultations were not necessary. An ISA will be prepared by the Labour Program and the TSB with the advice of the Privacy Management Division of ESDC.

Regulatory analysis

Costs and benefits

Both the Labour Program and the TSB, in carrying out their respective investigative duties, are made aware of transportation health and safety occurrences and hazardous occurrences. Both parties, however, are restricted in their ability to effectively provide each other with certain information pertaining to an occurrence. By authorizing the Labour Program to make personal information available to the TSB for the purposes of administering or enforcing the CTAISB Act, the amendment will ensure timeliness, mitigate overlap, and help to successfully fulfill both the TSB and the Labour Program’s mandates.

There are no costs associated with the amendment.

“One-for-One” Rule

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

Small business lens

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

Strategic environmental assessment

In accordance with The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for this amendment.

Implementation, compliance and enforcement and service standards

With the coming into force of the amendment upon registration, ESDC will have the authority to disclose personal information to the TSB; however, the information will only be disclosed once an ISA has been finalized. The ISA between ESDC and the TSB will outline the purposes, modalities and protections relating to the information to be shared. All information disclosed by ESDC to the TSB will be subject to the requirements for the protection, use, and disclosure of information pursuant to the CTAISB Act and the related regulations, as well as the DESDA, DESDR, and the Privacy Act.

The TSB, in entering into an ISA with ESDC, will have to demonstrate that any information to be obtained from ESDC is specifically required for the administration or the enforcement of the CTAISB Act. As with information obtained from ESDC, all information disclosed will be subject to the requirements for the protection, use and disclosure of information pursuant to the CTAISB Act and the related regulations, as well as the DESDA, DESDR and the Privacy Act, Treasury Board of Canada Secretariat privacy policies, directives, and related guidelines.

ESDC’s governance structure is comprised of several executive committees that play a key role in supporting the legislative mandate, and the policy, program and service delivery priorities of the Department. The Data and Privacy Committee addresses matters concerning privacy and the protection of personal information, including the review of ISAs. The ISA process involves a standard privacy review function, including consultation with key internal stakeholders including the Privacy Management Division, Legal Services and Corporate Security. If it is required in the future, a Privacy Impact Assessment will be drafted by ESDC, the TSB, and the Privacy Management Division.

ESDC’s internal privacy policies and guidelines ensure that the measures for the protection of personal information are in place for the collection, use, and disclosure of personal information and are core considerations for all programs. For the purposes of disclosures to the TSB, this may include information such as accident investigations reports, medical information, and accident details.

Contact

Duncan Shaw
Senior Director
Occupational Health and Safety Policy Unit
Workplace Directorate
Labour Program
Employment and Social Development Canada
165 De l’Hôtel-de-Ville Street
Place du Portage, Phase II, 10th Floor
Gatineau, Quebec
K1A 0J2
Telephone: 819‑654‑4450
Email: duncan.shaw@labour-travail.gc.ca