I recently blogged about PIPEDA and Video Surveillance, particularly in the insurance claims process. We are finally getting some guidance from the courts on how PIPEDA will be applied in litigation.

Since the Personal Information Protection and Electronic Documents Act (“PIPEDA”) came into full effect on January 1, 2004, insurers have been concerned about what impact this legislation might have on their claims handling processes and the ability of claims personnel to order video surveillance of claimants. There has been a fair amount of uncertainty and, while the issues are not entirely resolved, we are beginning to receive some guidance on how the courts will deal with the intersection between privacy rights and litigation.

The Ontario Superior Court of Justice recently issued a decision in the matter of Ferenczy v. MCI Medical Clinics. In this case, the insurer ordered video surveillance of the claimant, which was used at trial to impeach the claimant’s testimony. An objection was raised by the Plaintiff’s counsel on the basis that the video surveillance was conducted in violation of PIPEDA and should therefore be inadmissible in court. In the absence of the jury, Justice Dawson considered this issue and reached a number of notable conclusions.

PIPEDA applies with respect to personal information that is collected, used or disclosed in the course of “commercial activities.” When the law applies, it requires the knowledge and consent of the individual concerned for the collection, use or disclosure of his or her personal information. There are a number of exceptions to the consent principle contained in Section 7 of the statute.

Justice Dawson concluded that litigation of third-party claims is not “commercial activity” for the purposes of PIPEDA. (Please note that this is likely not the case for a first-party claim, such as under a disability policy or for Section B benefits.) Justice Dawson also concluded that, if PIPEDA applied, the Plaintiff implicitly consented to the collection of personal information via video surveillance by the act of putting forward the claim. Finally, Justice Dawson also concluded that the exception to the consent principle contained in Section 7(1)(b) was applicable.

Lawyers in our privacy and insurance law groups have been recently involved with a number of PIPEDA complaints against insurers initiated by plaintiff’s counsel. While the complaints are not yet resolved, insurers would be well advised to anticipate that such complaints may become commonplace until these matters are clearly resolved by the Privacy Commissioner or the Federal Court. It is possible that the Privacy Commissioner’s conclusions will differ from those of Justice Dawson, further complicating matters for insurers.