Elements of consent

If you require consent to collect, use or disclose personal information, the consent must:58

  • be provided by the individual or their substitute decision-maker (the individual cannot provide a valid consent if they are not capable)
  • not be obtained through deception or coercion—the individual must give the consent freely and voluntarily
  • relate to the information that you are collecting, using or disclosing and
  • be knowledgeable

A consent is considered knowledgeable if it is reasonable to believe that the individual knows the purposes of the collection, use or disclosure and knows that they have the right to give, withhold or withdraw consent.59 It is generally reasonable to believe that an individual knows the purposes for the collection, use or disclosure if you:

  • post a notice describing the purposes, where it is likely to come to the individual’s attention
  • make the notice readily available to the individual
  • give the individual a copy of the notice or
  • otherwise communicate the content of the notice to the individual

This notice can be given in the form of your public statement of information practices if the statement describes the purposes of the collection, use or disclosure and explains that an individual may give, withhold or withdraw consent. For more information, see “Public statement about information practices.”

It is not always reasonable to believe that a written notice or statement of information practices will sufficiently inform someone of the purposes of a collection, use or disclosure. For example, when low literacy skills or a language barrier prevent someone from understanding your notice, you must find another way to communicate the relevant information.

 

58. CYFSA, s. 295(1)
59. CYFSA, s. 295(4)