Thursday, December 02, 2004

More of PIPEDA and litigation: Goldberg v. St. John

PIPEDA made a brief appearance in an Ontario court in an interlocutory decision of Case Management Master Thomas Hawkins rendered at the end of September 2004. In Goldberg v. St. John, the defendant sought the plaintiff's client records to test a lost income claim. The plaintiff had been an employee of CIBC World Markets and he resisted the discovery request on the basis that the information should be subject to privilege and that its disclosure was barred by PIPEDA. He lost on the PIPEDA claim:

Goldberg v. St. John:

"[3] In order to challenge and test the plaintiff's evidence as to lost income, the defendants seek the following information: production of client records on all the plaintiff's customers for the period from 1997 to the present including client names and addresses. The defendants wish to track all the plaintiff's commission revenue and to understand why the plaintiff's commission revenue increased or decreased. Some 150 clients are involved. The theory of the defence is that some or all of the income which the plaintiff has lost and will lose in the future was and will be the result of factors unrelated to the accident.

[4] The plaintiff and CIBC World Markets Inc. resist this request on the ground that the information which the defendants seek is information which they are required to keep confidential. This confidentiality obligation is found in several places. First there is the Investment Dealers Association National Instrument 33-102. Secondly, there are the confidentiality of client information provisions found standard 'B' in the Conduct and Practices Handbook for Securities Industry Professionals prepared by The Canadian Securities Institute.

[5] The plaintiff and CIBC World Markets Inc. also rely upon the privacy provisions of the Personal Information Protection and Electronic Documents Act, S. C. 2000 ch. 5. I do not base my decision on this statute. I am not persuaded that this federal statute applies to a provincially regulated business and its employees such as CIBC World Markets Inc. and the plaintiff. CIBC World Markets Inc. is a stockbroker, not a bank."

Once again, it has been held that PIPEDA does not shield a party to litigation from disclosing relevant records. But this also reminds one that the info may be shielded by other legal and procedural rules.

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