Vol. 147, No. 50 — December 14, 2013

Electronic Documents or Information Regulations

Statutory authority

Department of Human Resources and Skills Development Act

Sponsoring department

Department of Human Resources and Skills Development

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue

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Human Resources and Skills Development styled Department of Employment and Social Development (Department) is replacing outdated technology and increasing the use of electronic services.

The Department of Human Resources and Skills Development Act (DHRSD Act) was amended in 2012 to provide the Minister with the authority to conduct business electronically with respect to programs created pursuant to the Canada Pension Plan, the Old Age Security Act, the Employment Insurance Act (EI Act) and program areas supported by grants and contributions under section 7 of the DHRSD Act, and the Canada Employment Insurance Commission (Commission) with the authority to conduct business electronically for the EI Act.

While the DHRSD Act provides the authority to conduct business electronically, there are currently no regulations that establish the parameters within which to provide and expand electronic service delivery.

Objective

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

Description

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

Sending and receiving of electronic documents or information

The proposed Regulations would establish when an electronic document or electronic information would be considered to be sent or received. They would 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 Minister or Commission use the same electronic system to communicate, such as the Department’s “My Service Canada Account,” the proposed Regulations would provide that the electronic document or electronic information would be 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 Minister or Commission would consider the electronic document or electronic information sent to the recipient when it enters an electronic system that is outside the control of the Minister or Commission. In both cases, unless the recipient notifies the Minister or Commission to the contrary, within a reasonable period of time, the proposed Regulations would provide that the date and hour sent would be indicated by the Minister’s or Commission’s designated system.

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

Electronic signature

The proposed Regulations would 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 Minister or the Commission that provides the same level of security as that of a secure electronic signature.

The proposed Regulations would 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 proposed Regulations would also require that the electronic signature must reliably indicate the person’s intentions with respect to the electronic document or information, for example, if they were applying for a benefit or confirming information. Reliability would be established using criteria such as the ability of the Minister 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 proposed Regulations would 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 proposed Regulations would establish the criteria for such things as ensuring that the converted document does not lose its legal value. To provide this assurance, the proposed Regulations would specify requirements such as recording the details of the conversion and the quality control associated with the conversion.

The proposed Regulations would 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 would have to be retained in an electronic format that did not alter its contents. Or, if it was created electronically, the proposed Regulations would stipulate that it has to be retained in the same electronic format or in a format that would accurately represent the source document. The proposed Regulations would 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 would require 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 Minister 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 DHRSD 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 four 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 have not been directly consulted on the proposed Regulations.

Rationale

The proposed Regulations support the implementation of more electronic services which represents an early step in the comprehensive transformation and modernization agenda in the Department.

The proposed Regulations would create the framework that would allow program areas to expand electronic service delivery in a consistent, efficient and secure manner. For clients and stakeholders this would mean having a similar electronic service experience regardless of the program they are using.

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

The proposed Regulations are principle-based rather than prescriptive. This provides program areas, when they implement the proposed Regulations, with the flexibility to tailor their system requirements and operational policies and procedures to meet program and client needs. For example, the proposed 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 Minister or Commission that an electronic document or information cannot be retrieved or processed. This provides the Minister 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 proposed Regulations would also allow program areas to be able 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 would be used.

Once implemented, the proposed Regulations would enable the Department to develop program delivery and service solutions that 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, would remain available to assist people in accessing programs and services.

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

Prior to implementing the proposed Regulations, 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

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to sections 71 (see footnote a), 72 (see footnote b) and 73 (see footnote c) of the Department of Human Resources and Skills Development Act (see footnote d), proposes to make the annexed Electronic Documents or Information Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be addressed to Bev Davis, Director, E-Services, Service Canada, 355 North River Road, Ottawa, Ontario K1A 0L1 (tel.: 613-941-5935; fax: 613-948-5400; email: bev.davis@servicecanada.gc.ca).

Ottawa, December 5, 2013

JURICA ČAPKUN
Assistant Clerk of the Privy Council

ELECTRONIC DOCUMENTS OR INFORMATION REGULATIONS

INTERPRETATION

Definitions

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” includes 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 capabilities for creation, recording, transmission or storage similar to those means.

“electronic signature”
« signature électronique »

“electronic signature” means

  • (a) a signature that consists of one or more letters, characters, numbers or other symbols in digital form that is incorporated in, attached to or associated with an electronic document or electronic information;

  • (b) a secure electronic signature, which has the same meaning as in subsection 31(1) of the Personal Information Protection and Electronic Documents Act; or

  • (c) a signature that results from the application of any technology or process that is determined by the Minister or the Commission as able to provide the same level of security as a secure electronic signature.

“migration”
« migration »

“migration” means the process of transferring any electronic document or 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 information is sent by the Minister or the Commission.

SENDING AND RECEIVING OF ELECTRONIC DOCUMENTS OR INFORMATION

Presumption — sent by Minister or Commission

2. An electronic document or electronic information sent by the Minister or the Commission is considered to be sent

  • (a) if the Minister or the Commission and the recipient use different electronic systems, on the date and at the hour when the electronic document or information enters an electronic system outside the control of the Minister or the Commission; or

  • (b) if the Minister or the Commission and the recipient use the same electronic system, on the date and at the hour when the electronic document or information becomes capable of being retrieved and processed by the recipient.

Presumption — received by recipient

3. (1) Subject to subsection (2), an electronic document or electronic information is considered 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 electronic document or information enters that electronic system and becomes capable of being retrieved and processed.

Presumption not applicable

(2) An electronic document or electronic information is considered 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 information could not be retrieved or processed.

Presumption — received by Minister or Commission

4. (1) An electronic document or electronic information is considered 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 information is not capable of being retrieved or processed by the Minister or the Commission, it may be considered not to be received by the Minister or the Commission and the date and hour referred to in subsection (1) is not to be relied on.

Multiple documents sent in same transmission

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

Documents establishing date and time sent or received

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

  • (a) a transmission slip;

  • (b) an acknowledgment of receipt;

  • (c) any metadata that relates to the electronic document or information;

  • (d) any other equivalent electronic document or information.

ELECTRONIC SIGNATURE

Additional requirements respecting electronic signatures

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

  • (a) link the identity of the signatory with the electronic signature for the purposes for which the signature is required; and

  • (b) indicate the signatory’s intention with respect to the electronic document or information.

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 relevant factors, including

  • (a) the purpose for which the electronic signature is required;

  • (b) the method used by the Minister or the Commission to identify the signatory and to link his or her identity to the electronic document or information for which the signature is required is appropriate; and

  • (c) the ability of the Minister or the Commission to verify whether any alteration has been made to
    • (i) the electronic signature after the time of signing,

    • (ii) the link between the electronic signature and the electronic document or information, and

    • (iii) the electronic document or information after the time of signing.

CONVERSION, RETENTION, ALTERATION AND DESTRUCTION OF
DOCUMENTS OR INFORMATION

Document or information may be converted

9. (1) All documents or information, including its related metadata, may be converted.

Conversion must not compromise 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 or its related metadata.

Conversion documentation

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

  • (a) record the details of the conversion, including the following:

    • (i) a reference to the original format of the source document or information, the steps taken during the conversion and the guarantees they purport to offer, according to the specifications provided with the conversion product, if that reference relates to the integrity of the source document or information or its related metadata and the integrity of the resulting electronic document or information or its related metadata,

    • (ii) details on the quality control associated with the conversion if those details relate to the integrity of the resulting electronic document or information or its related metadata, and

    • (iii) details pertaining to any previous conversion; and

  • (b) retain throughout the required retention period for the document or information the conversion record which must be attached, directly or by reference, to the resulting electronic document or information or to the storage medium.

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

  • (a) when the document or information is created, sent or received,

    • (i) in the case of a document or information in a non-electronic format, it is retained in a format that does not alter its contents, or

    • (ii) in the case of a document or information in an electronic format, it is retained

      • (A) in the format in which it was created, sent or received, or
      • (B) in a format that accurately represents the electronic document or information that was originally created, sent or received;
  • (b) the contents of the electronic document or information and its related metadata are readable or perceivable so as to be usable for subsequent reference; and

  • (c) the format and the medium in which the electronic document or information is retained provide a reliable means of maintaining, from the time the source document or information is created, sent or received, the integrity of the electronic document or information, including the integrity of the record of retention actions and administrative activities, apart from any changes or additions made in the normal course of communication, storage or display.

Date and hour retained

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

Standard of reliability

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

Integrity maintained throughout retention period

13. (1) The integrity of any electronic document or 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 information ends.

Assessment of security measures

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

  • (a) the electronic document or information in order to maintain its integrity throughout the period set out in subsection (1); and

  • (b) the electronic system in which the electronic document or information is created, sent, received or retained.

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 electronic document or information and its related metadata have not been altered, apart from the alterations set out in subsection 14(2), even if the electronic document or 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

  • (a) may be used in the place of the source document;

  • (b) is not invalid or unenforceable solely because it is in electronic format; and

  • (c) has the same legal value as the source document regardless of the medium, format or technology used.

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 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 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

  • (a) the electronic document or information to be destroyed;

  • (b) the date and hour when the electronic document or information was created, sent or received, if those details were generated and retained;

  • (c) the name of the person who authorized the destruction; and

  • (d) the date and hour of the destruction.

COMING INTO FORCE

Registration

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

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