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.

Sunday, May 14, 2006

Finding: Personal information practices considered in sale of dental practice 

One of the most commonly identified "defects" with PIPEDA is that it does not contemplate and efficiently handle the disclosure of personal information in connection with the sale of a business, including pre-sale due diligence. This complaint dealt with the sale of a dentist's practice before the Ontario health information privacy law came into effect and was declared to be "substantially similar" to PIPEDA.

In this particular case, the complainant was given a "consent form" that contemplated that patient records may be disclosed in connection with the sale of the dental practice. It is not clear what the form actually said and whether it purported to obtain patients' consent. (Again, we have a situation where the lack of full detail in the summarized finding makes it very difficult to pull out best practices for the future.)

The Commissioner determined that the disclosure of certain patient records in connection with pre-purchase due diligence in this case was not contrary to PIPEDA. She reasoned:

  • Although the Personal Information Protection and Electronic Documents Act (PIPEDA) does not specifically contemplate any such collection, use or disclosure of personal information as described in the consent form, she noted that it was likely that a reasonable person would consider it appropriate for a dental office to disclose patient personal information to prospective buyers in order for the buyer to evaluate the practice, as per subsection 5(3).
  • The Commissioner also noted that dentists are subject to numerous regulations concerning privacy. Indeed, several regulations, policies, procedures, and laws apply to the disclosure of information: for example, Health Disciplines and Dentistry Acts, confidentiality agreements, and policies concerning personal information.
  • She stated that the Act also requires that personal information be safeguarded, and confidentiality agreements would meet such a requirement.
  • Given the above, the Commissioner was satisfied that the purpose, as described in the consent form, was an appropriate one.

Does this mean that a company that is not "subject to numerous regulations concerning privacy" can't disclose customer information as part of the sale process? I don't know.

Read the full finding here: Commissioner's Findings - PIPEDA Case Summary #325: Personal information practices considered in sale of dental practice (January 18, 2006)

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