Publication
title
Canada Privacy Commissioner Finds Complaints About an Insurer's Videotape Surveillance Not Well Founded
DATE
September 30, 2005
EXPERTISE
On August 9, 2005, the Office of the Privacy Commissioner of Canada brought some clarity to the lawfulness of videotape surveillance in the context of an insurer seeking information to defend a lawsuit.
A woman was in a car accident and took action against the driver of the other vehicle, claiming that her injuries prevented her from performing domestic duties. During the course of the litigation, the insurer, which took up the driver's defence, found inconsistencies between the woman's testimony at discovery, her medical reports and the injuries she claimed in the lawsuit. The insurer hired a private investigator who observed the woman's daily activities and videotaped her driving, shopping and carrying boxes. Ultimately the videotape was used in court.
When she learned of the surveillance, the woman lodged complaints with the Office of the Privacy Commissioner of Canada, on the basis that her personal information was collected without her knowledge or consent, contrary to Principle 4.3 of the Personal Information Protection and Electronic Documents Act ("PIPEDA"). The Assistant Privacy Commissioner found that the complaints were "not well-founded," stating that if an individual starts a legal action there is an implied consent that the other party to the suit may collect information required to defend itself. In this case, by initiating the suit and providing testimony and medical reports that were inconsistent with the injuries claimed, the woman impliedly consented to the collection of such personal information.
The Assistant Privacy Commissioner's finding echoes a 2004 judgment of the Ontario Superior Court of Justice, in Ferenczy v. MCI Medical Clinics. In that case, the plaintiff had sued a doctor for medical negligence in relation to the diagnosis and treatment of a cyst on her left wrist. She claimed severe and ongoing problems with her left wrist, forearm and hand that ultimately led to her loss of employment. Defence counsel hired an investigator who videotaped the plaintiff holding a coffee cup continuously in her left hand, something she had testified she could not do.
On the basis of the Ontario Rules of Court, the trial judge allowed the videotape as evidence in the trial, but only to the extent that it could be used to impeach the woman's credibility. However, that holding was clearly directed at a particular technical rule of admissibility of evidence, and the judge then went on to fully consider the applicability of PIPEDA to videotaped surveillance.
The judge found that the videotaping was lawful. First, the videotaping fell within two different exceptions to the applicability of PIPEDA. Second, the plaintiff had given implied consent to the defendant to "collect, record and use her personal information insofar as it is related to defending himself against her lawsuit":
A plaintiff must know that by commencing action against a defendant, rights and obligations will be accorded to the parties to both prosecute and defend. The complainant has effectively, by commencing this action and through her pleadings, put the degree of injury to her hand and its effect on her life into issue. One who takes such a step surely cannot be heard to say that they do not consent to the gathering of information as to the nature and extent of their injury or the veracity of their claim by the person they have chosen to sue (para 31).
In both of these rulings, it is clear that implied consent is not limitless: only personal information relevant to the merits of the case and the conduct of the defence may be collected. However, while the Assistant Privacy Commissioner's finding was made partly on the basis that there were inconsistencies between the evidence and the damages alleged, bringing credibility directly into issue, the broad wording in the Ontario Superior Court's decision in Ferenczy suggests that such inconsistency is not essential to lawful videotape surveillance. Rather, as long as the nature and extent of the injury and its impact on his or her life are in issue, a plaintiff, by commencing an action, gives implied consent to the recording of observations verifying the extent of the injury and its impact.
There has been speculation and debate as to PIPEDA's impact on the litigation process and the role of private investigators. While PIPEDA's aim is to protect the sanctity of personal information, these two rulings suggest that when an individual initiates a lawsuit, the corresponding duty and right to defend outweigh some of the protections otherwise provided by the law, which should be of some comfort to insurers faced with a duty to defend their clients.
The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.
Contacts
Hélène Lefebvre
Montréal
514.847.4457
hlefebvre@ogilvyrenault.com
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Peter J. Stanford
Ottawa
613.780.8626
pstanford@ogilvyrenault.com
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William W. McNamara
Toronto
416.216.3906
wmcnamara@ogilvyrenault.com
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