Legal Framework for Electronic Archiving
Although some countries require certain types of documents to be kept and archived in their original paper form, for most categories of documents, including HR-related records, there is no such requirement, and it is generally acceptable to use electronic versions of paper records (i.e., scanned copies of paper originals) during most government agencies’ inspections and audits or in court proceedings.
The evidential or probative value of electronic versions of paper records may be more easily challenged before a court than it would be for the originals. This is mainly because the original records could be tampered with or changed before being scanned, and, unless proper technology has been used (e.g., encryption and timestamping), it may not be easy to detect such changes from a scanned copy. In specific situations, it may be good practice for employers to retain archives of paper originals in the event such originals would be requested by a specific investigator, auditor, judge or authority.
Are electronic scanned copies of paper originals legally valid?
Electronic archiving is regulated by federal, provincial and territorial legislation, depending on the jurisdiction of the employee in Canada. The applicable legislation may also depend on the type of employee record or document at issue. For example, federally, the Canadian Pension Plan, Employment Insurance Act and its Regulations, and the Income Tax Act, establish production and retention requirements for certain hard-copy records related to an individual’s employment. Provincial and territorial employment standards, tax and workers’ compensation legislation, will establish other requirements.
Electronic versions of the above records will be regulated by a separate layer of federal, provincial and territorial legislation, as applicable to the employee. Federally, the Protection of Personal Information and Electronic Documents (PIPEDA) and the Secure Electronic Signature Regulations govern electronic archiving for certain employment matters under the jurisdiction of such legislation. Provincial and territorial legislation, including without limitation the Electronic Transactions Act, Electronic Commerce Act, and the Electronic Information and Documents Act, will apply to other employment matters under the jurisdiction of such legislation. This can include employment contracts, excess hour agreements, averaging agreements, vacation pay and severance.
Document retention requirements imposed by certain federal, provincial and territorial laws may be satisfied by the retention of electronic records (including electronic images of paper documents) provided that certain conditions are satisfied, as follows:
- the electronic document is retained in the format in which it was created, sent or received, or in a format that accurately represents the information contained in the document that was originally created, sent or received;
- the information in the electronic document that is retained will be accessible so as to be usable for subsequent reference by any person who is entitled to have access to the document that was originally created, sent or received, or who is authorized to require its production;
- the employer has reviewed and confirmed the integrity of the electronic imaging and storage system notably to ensure that (i) upon scanning, the document shall not be altered in any manner and shall be maintained in its entirety; (ii) the integrity of a document shall be maintained during the course of its life cycle, from creation, in the course of transfer, consultation and transmission, during retention and until archiving or destruction; and (iii) the requisite security measures applied to protect the document through its life cycle are in place; and
- the Employer retains the documents in an electronically readable format for the applicable retention periods.
The probative value of an electronic scanned copy will depend on the applicable federal, provincial, or territorial evidentiary legislation, as well as any applicable common or civil law principles. Federally, the Canada Evidence Act broadly defines a “record” as including “any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced.” Provincial and territorial evidence legislation adopt a similarly broad definition of the word. However, depending on the applicable jurisdiction, electronic copies of certain paper originals such as wills, codicils, trusts created by wills or codicils, powers of attorney and negotiable instruments, are not legally valid.
Are there any legal requirements for electronic archiving systems (EAS)?
There is no national authority which sets out criteria for a legally “valid” electronic archiving system. However, the Canadian General Standards Board (CGSB) has prepared a national standard which sets out principles, methods, and practices for the creation and management of all forms of electronic records to support their admissibility and weight as evidence in legal proceedings. While non-binding on the Employer, continuous compliance with the CGSB standard is an essential component for establishing proof of the integrity of an electronic record or electronic records (archiving) system.
HR Best Practices: Canadian evidentiary legislation provides that any person may rely on electronic documents (i.e. an electronic scanned copy) provided that they satisfy the burden of proving the document’s authenticity and the elements of the “best evidence rule.” The best evidence rule is generally satisfied on proof of the integrity of the electronic record itself.
Led by PeopleDoc’s Chief Legal & Compliance Officer, the HR Compliance Assist team relies on a network of internal and external compliance experts and lawyers, including the global law firm Morgan Lewis, to provide clients with best practices and recommendations on topics such as HR document retention, employee data privacy, and HR electronic records. HR Compliance Assist also provides local compliance monitoring and alert services in select countries where PeopleDoc’s customers have employees. HR Compliance Assist is a service exclusively available to PeopleDoc customers.