Saturday, November 10, 2007

Privacy laws and general cluelessness

Karen Selick, a lawyer from Belleville, has an opinion piece in a recent National Post going on a tirade against privacy laws. I can certainly see her point. But the problem is not the privacy laws themselves, but the general cluelessness of the people who cite them to avoid doing something they can and likely should do.

The examples raised by Ms. Selick are general bureaucratic nonsense, but I do agree that privacy laws are increasingly and incorrectly cited by people who should know better:

The CRA vs. Canadian men

Wednesday, November 07, 2007

It appears that the Canada Revenue Agency (CRA) has recently established a policy of ripping off divorced or separated men on the flimsiest of pretexts. Within the past month, two of my legal clients have had their spousal support deductions disallowed, despite having filed copies of the documents (court order or separation agreement) proving that they have to pay.

They've both received letters from CRA bureaucrats saying they must provide signed receipts from their estranged wives. Fat chance. The wives have no obligation to provide receipts. Many women in these circumstances would withhold receipts either as a bargaining tactic to exact some other concession, or from sheer malice.


I phoned the CRA and spoke to a "pre-assessment review officer." She told me that it was within an officer's discretion to accept other evidence of support having been paid, without insisting that a man approach a hostile wife for receipts, and that she herself would have accepted the copy of the wife's tax return. I suspected that her apparent reasonableness may have arisen because she was talking to an irate lawyer, so I pressed on, asking why the CRA would not, on its own initiative, simply compare the two tax returns and allow the husband's deduction so long as the wife had reported the same amount of income.

Oh no, she said, that would violate the privacy laws. If they allowed the man's deduction so easily, that would be tantamount to spilling some confidential information that the wife had provided on her return.

My mind boggled. The CRA would choose to overtax a man by thousands of dollars rather than have him infer, from the fact that his deduction was allowed, that his wife had complied with the Income Tax Act and reported the money he already knew he had given her.

Could anyone really believe that this is what the Privacy Act requires? What nonsense. Men wouldn't necessarily assume that the CRA had cross-checked their wives' returns. They'd just assume the deduction was allowed because they're legally entitled to it.

The Privacy Act and its private sector counterpart, the Personal Information Protection and Electronic Documents Act (PIPEDA), now loom up unexpectedly and absurdly in many situations, I've observed. Few people know what they really require, so they've become a bogeyman, lurking ominously in the background, waiting to trip up some insufficiently vigilant flunky. It's like being a kid again, worrying that Santa's always watching and will know if you'd been bad or good. When in doubt, don't stick your neck out by saying anything about anything, no matter how absurd and inconvenient the consequences may be to anyone else.

Here's another example: Last year, I spent nine hours at a hospital emergency ward with a relative, who ultimately died there following a stroke. Days later, I wrote a letter praising the three doctors and one nurse who had attended her for their diligence and compassion. I didn't know their names but asked the hospital to pass my letter on to them. Astonishingly, the hospital replied that doing so would violate the privacy laws, unless the deceased's executor consented. Huh? I was there. I watched them doing their jobs. They discussed things with me. I observed their competence and kindness. I wanted them to know that. How on Earth could it violate anybody's "privacy" for the hospital to pass along my letter?

Aah, PIPEDA -- I've pondered this farce before. Every divorce lawyer in the country collects and uses personal information about their clients' spouses. We couldn't do our jobs otherwise. Theoretically, PIPEDA says we're supposed to seek the opposing party's consent to collecting and using information about their incomes, their adultery, their alcoholism, their bankruptcies, etc. Never yet has another lawyer contacted a client of mine seeking consent, so I assume my colleagues are as mystified as I am over how we're supposed to comply. Legislation like this, applied in the ridiculous way in which it is so often applied, undermines respect for the law. And the law could sure stand a little respect these days.

The only thing that I'd add is the last paragraph is likely incorrect. The case between the spouses is not a "commercial activity" so PIPEDA would not apply to that, even if it is facilitated by a lawyer. No PIPEDA, no consent required.

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