Privacy under PIPEDA and Surveillance
An Ontario court has issued a decision interpreting Canada's federal privacy law (Personal Information Protection and Electronic Documents Act S.C. 2000 c. 5 or PIPEDA for short)in the context of video surveillance. The case is Ferenczy v. MCI Medical Clinics and Dr. Gary Weinstein (April 14, 2004, S.C.J., Dawson, J.
In this case, the plaintiff, Denise Ferenczy, sued the defendant, Dr. Gary Weinstein, for professional negligence in relation to his diagnosis and treatment of a ganglion cyst located on the inner aspect of her left wrist. In her examination in chief Ms. Ferenczy testified that her injury had adversely affected her employability and income earning capacity on a permanent basis.
In the early stages of the cross-examination by counsel for Dr. Weinstein, Ms. Ferenczy testified that:
... she could not grip a hairbrush with her left hand. She then indicated that it was also very difficult for her to grip a cup with her left hand. She then stated that she would invariably grip a cup in her right as opposed to her left hand.
Counsel for the doctor sought leave to use an eight minute clip of video surveillance evidence in his cross-examination of Ms. Ferenczy which, apparently, showed her holding a coffee cup continuously in her left hand (something she testified she could not do). The defendant had not contemplated using this videotape evidence until Ms. Ferenczy testified regarding her limitations.
The general rule in civil trials is that prima facie relevant evidence is admissible, subject to a discretion to exclude where the probative value is outweighed by its prejudicial effect or where its admission renders the trial unfair.
The judge determined that the videotape evidence was admissible on this basis, that it could be used in the cross-examination of the plaintiff.
Although not required to do so for purposes of the ruling he was called upon to make, the judge went on to consider PIPEDA and, to that extent, his comments on this issue are obiter (to impress friends at the cocktail party, obiter from the Latin meaning "said in passing").
The plaintiff contended that the taking of video surveillance and its subsequent disclosure to counsel, were in contravention of PIPEDA, that its use at trial would further contravene the legislation and that it was, therefore, inadmissible.
In this case, the plaintiff submitted that "the private investigator (an organization) retained by the CMPA (an organization) was collecting and making a record (videotape) of the plaintiff's personal information (images) during the course of commercial activity (while being paid), and that as the plaintiff did not consent to the collection and release of the information, the investigator and the CMPA are in contravention [of PIPEDA]".
The judge said that if this was correct, it would dramatically "transform both civil and criminal litigation into something very different than it is today."
The judge applied the law of agency and found that "it is the defendant in the civil case who is the person collecting the information for his personal use to defend against the allegations brought by the plaintiff. Those whom he employs, or who are employed on his behalf, are merely his agents." Accordingly, the defendant was not collecting the information "in the course of a commercial activity".
Furthermore, the judge makes the following comment:
... the plaintiff has 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. Consent is not a defined term under the Act, and there is no indication in the Act that consent cannot be implied.
Finally, the judge considers section 7 of PIPEDA and finds that "the surveillance conducted here is "related to investigating" the claim made by the plaintiff against the defendant. No doubt disclosure of the investigators surveillance efforts or the seeking of consent from the plaintiff would "compromise the availability or the accuracy of the information". Once the collection of the information has been found to fall within s. 7(1)(b), then pursuant to s. 7(2)(d) it can be used. Surely, s. 7(3)(c) and (i) are broad enough to cover the disclosure of the information in accordance with the rules of court and at a trial."
In other words, the court ruled that exceptions found in the Act that apply to the law of Canada includes the common law, though it noted that the wording in PIPEDA "leaves a lot to be desired in terms of clarity and usefulness."
This case is of considerable assistance for employers if the interpretation of the judge with respect to PIPEDA is correct. Again, the comments on this issue were made in obiter and it may be necessary to wait "for another day" to have this issue conclusively decided.