Saturday, August 20, 2005

Assistant Privacy Commissioner concludes that initiating a lawsuit is implied consent to video surveillance

McInnes Cooper recently acted for one of Canada’s largest automobile insurers in achieving a favourable result in two related complaints to the Office of the Privacy Commissioner, both stemming from a decision by the insurer to use video surveillance to verify the claimed injuries.

Following a motor vehicle accident, the plaintiff advanced a claim against the driver of the vehicle, whose insurer responded to defend the claim. During the examinations for discovery, the insurer concluded that there were inconsistencies in the reported injuries and hired a private investigator to conduct video surveillance of the plaintiff. Surveillance captured the plaintiff, sometimes with her husband, carrying out daily activities. The tape was used at trail to impeach the witness.1

The plaintiff and her husband each brought separate complaints to the Privacy Commissioner, both alleging that the use of video surveillance was a collection of personal information without consent, contrary to the Personal Information Protection and Electronic Documents Act (PIPEDA). The Assistant Commissioner concluded that both complaints were not well-founded. For the plaintiff’s husband, the Assistant Commissioner reviewed the tapes and saw that he was not recognizable in the images. Thus, she concluded, the information was not “identifiable” and there was no collection of “personal information”, as that term is defined in PIPEDA.

With respect to the plaintiff, the Commissioner agreed with the insurer’s argument that, by initiating a lawsuit in which injuries are at issue, the plaintiff has impliedly consented to the insurer collecting personal information that is necessary to defend its insured. This implied consent only extends to information that is relevant to the merits of the case and the conduct of the defence. The Assistant Commissioner concluded that "the collection of her personal information was limited to what was necessary for [the insurer] to defend itself against … Court action."

The insurer argued, following the Ontario decision of Ferenczy v. MCI Medical Clinics, 2004 CanLII 12555 (ON S.C.) (see The Canadian Privacy Law Blog: PIPEDA and Video Surveillance: Guidance from the Ontario Courts), that PIPEDA does not apply to third-party personal injury claims as the insurer is an agent for the defendant and the relationship between the parties to litigation is not a commercial one. Unfortunately, the Assistant Commissioner did not refer to this line of argument in her finding.

As of yet, the Assistant Commissioner’s finding is not reported on the Commissioner’s website.

1  Counsel for the plaintiff argued that the video was made in violation of PIPEDA and should be inadmissible. The court decided, from the bench on voire dire, that PIPEDA did not apply and, if it did, any violation of PIPEDA would not render the evidence inadmissible.

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