Digests

Privacy

Personal Information Protection and Electronic Documents Act

Judicial review challenging Privacy Commissioner of Canada’s jurisdiction to carry out investigation under Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA), compel access to information covered by solicitor-client privilege, litigation privilege—Applicant’s insured involved in vehicle accident leading to tort action against her by third party (Mr. Gaudet)—Applicant having duty to defend insured in such actions—Applicant hiring private investigator, inquiring into Mr. Gaudet’s activities, using video surveillance before, after tort action initiated—Mr. Gaudet requesting from applicant, pursuant to PIPEDA, all information collected, particularly surveillance reports, tapes—Applicant denying request, contending PIPEDA not applicable—Mr. Gaudet thus complaining to Privacy Commissioner, alleging PIPEDA breach—Privacy Commissioner assuming jurisdiction in investigating complaint, requesting information collected by applicant—Whether PIPEDA applicable to evidence collected by insurer in defending insured in third party tort action—PIPEDA, Part I applicable to every organization in respect of personal information collected, used, disclosed in course of “commercial activities”, defined in PIPEDA, s. 2(1)—Collection of evidence on plaintiff by defendant in tort action brought by plaintiff  clearly not constituting “particular transaction, act or conduct that is of a commercial character” as defined in s. 2(1)—Privacy Commissioner submitting that since insured paying appellant to defend her, evidence collected now assuming commercial character—PIPEDA’s purpose related to electronic commerce as reflected in long title—Collecting information for defending civil tort action having little, nothing to do with electronic commerce—If primary activity at hand not commercial activity contemplated by PIPEDA, such activity remaining exempt from PIPEDA even if third parties retained by individual to carry out activity on their behalf—Activity’s primary characterization dominant factor in assessing commercial character under PIPEDA, not incidental relationship between one seeking to carry out activity and third parties—Thus, investigation reports, videos not subject to PIPEDA—Nevertheless, under PIPEDA, s. 12(1), Privacy Commissioner still having to investigate complaints—However, investigative powers limited where solicitor-client, litigation privilege raised—In case at bar, Privacy Commissioner having no authority to assume jurisdiction over matter, request justification regarding validity of privilege claims—Application allowed.

State Farm Mutual Automobile Insurance Company v. Canada (Privacy Commissioner) (T-604-09, 2010 FC 736, Mainville J., judgment dated July 9, 2010, 70 pp.)