The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Saturday, October 29, 2005

Admissibility of video surveillance evidence 

The use of video surveillance has come under increased scrutiny in recent years, prompted mostly by new privacy laws such as PIPEDA and the western provinces' PIPAs. To insurance lawyers, the most important question is what impact do these laws have on the admissibility of video surveillance evidence.

The only published court decision on this point, Ferenczy v. MCI Medical Clinics, 2004 CanLII 12555 (ON S.C.), may be interpreted to hold that a violation of PIPEDA does not render video evidence inadmissible (but it could be much more clear):

"[35] For all of the foregoing reasons I conclude the evidence here in question was not collected, recorded, used or disclosed in contravention of the Act. However, as I indicated earlier in these reasons, the evidence is in any event relevant and its probative value exceeds its prejudicial effect. Its admission into evidence would not render the trial unfair and it is, in my view, admissible at trial in any event at trial."

Johannes Schenk recently wrote about a BC arbitration decision in which the arbitrator decided that a violation of that province's Personal Information Protection Act would render the resultant evidence inadmissible. From paragraph 58 of IN THE MATTER OF an Expedited Arbitration Between EBCO Metal Finishing Ltd. and International Association of Bridge, Structural, Ornamental & Reinforcing Iron Workers, Shopmens' Local 712, [2004] B.C.C.A.A.A. No. 260:

... The PIPA is clearly intended to apply to the employment relationship. The authority of the legislation would not be given effect were an employer to breach its provisions and be permitted to rely on the unlawfully obtained evidence anyway. For an arbitrator in British Columbia to admit the evidence in such a case would amount to error of law and abdication of jurisdiction.

Aribral decisions have little precedential value, particularly outside the particular province, but this highlights that this issue has not entirely been put to rest.

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