The Québec Private Sector Privacy Act: When Does It Apply To Organizations Outside Of Québec?

The territorial application of Québec's Act respecting the protection of personal information in the private sector1 (the "Act") remains to be settled by legislation or jurisprudence. While Courts have identified the criteria used to ascertain the existence of an enterprise, they have yet to develop a clear approach to the application of the Act to foreign enterprises with activities in the province of Québec.

As discussed below, Canada's Personal Information Protection and Electronic Documents Act2 ("PIPEDA") and the EU General Data Protection Regulation (the "GDPR") may provide models that could be considered in Québec. However, until the territorial scope of the Act is clarified, organizations may find that the Act applies to their activities in unexpected ways, as has occurred in a number of cases discussed below, where there have been minimal connections to Québec.

1. Application of the Act

   Article 1 of the Act provides for its application.3 According to this article, the Act establishes rules with respect to personal information "which a person collects, holds, uses or communicates to third persons in the course of carrying on an enterprise within the meaning of article 1525 of the Civil Code of Québec" (the "CCQ").4

   Other articles in the CCQ mention the concept of "enterprise," but Courts have explicitly refused to use them to determine the application of the Act. The only criteria to ascertain the existence of an enterprise for this purpose is article 1525 of the CCQ.5 Under paragraph 3 of article 1525 of the CCQ,

   The carrying on by one or more persons of an organized economic activity, whether or not it is commercial in nature, consisting of producing, administering or alienating property, or providing a service, constitutes the operation of an enterprise.6

   The definition of "enterprise" as articulated by article 1525 of the CCQ has been the subject of much debate.7 However, Pierre Dalphond, prior his appointment to the Québec Court of Appeal, described five factors to determine the existence of an enterprise.8 Courts have used these factors to determine the presence an enterprise within the meaning of article 1525 of the CCQ for the purposes of the application of the Act.9

   In the October 2018 case Firquet c. Acti-Com, Québec's Commission d'accès à l'information (the "Québec Privacy Commissioner") lists the five factors, which are cumulative, to find the existence of an enterprise in Québec's civil law:

   A plan specifying the enterprise's economic objectives, according to which the activity is organized. It need not be complex or in writing. Assets related to the pursuit of the objectives, which can vary from a large company's machinery or buildings to a single craftsman's modest toolbox. A series of habitual juridical acts involving the entrepreneur, carried out in pursuit of the objectives. Other economic players or stakeholders receptive to the goods and services offered by the enterprise, generally defined as customers, goodwill, or the market. Economic value or profit directly attributable to the efforts of the entrepreneur.10 The Québec Privacy Commissioner used these factors to assess whether the Act applies to the activities of Gérard Camisa, who acted on behalf of his...