Hope fading for exemption to federal privacy legislation related to insurance investigations

For insurance defence counsel, hope is receding that federal privacy legislation related to insurance investigations and surveillance will be aligned in the future with the comparatively more straightforward provincial privacy legislation found in B.C. and Alberta.
John Beardwood, partner in Fasken Martineau DuMoulin LLP’s Toronto office, made the observation in an address to Insurance Bureau of Canada (IBC)’s Ninth Annual Regulatory Affairs Symposium, held in Toronto on Oct. 30.
Beardwood noted privacy legislation in B.C. and Alberta has a fairly simple set of exemptions. Effectively, in B.C. and Alberta, information obtained for the purposes of a reasonable investigation are exempt from the privacy legislation’s requirement that a person consents to the collection of his or her information.
Lawyers have lobbied to amend the federal privacy legislation to include these same exemptions, but the last federal election brought the possibility to a halt, Beardwood said, and now no one knows when or if those amendments will actually take place.
In the meantime, the federal privacy legislation has been used to narrow the scope of an insurer’s investigatory powers, Beardwood observed.
“I am going to get into OPC [Office of the Privacy Commissioner’s]’s views on covert surveillance generally,” he said. “One of the main points is: the [insurance] organization must have exhausted all other means of collecting the personal information in less-privacy-invasive ways.
“But clearly the past practices of taking photos with respect to surveillance are going to come under intense scrutiny from the OPC’s office on a go-forward basis.”
In particular, Beardwood referenced the Privacy Office’s decision in Finding 2008-392, in which a person objected to a private investigator taking a picture in the course of surveillance on behalf on an insurer.
The insurer made four arguments, including that the purpose of the photo was to: 1) identify the investigation subject and 2) establish that the surveillance subject was indeed at home.
The privacy office ruled in its finding that the insurer had the full name, house address and other particulars of the person under surveillance, which should have been sufficient to identify the individual.
Secondly, the privacy office ruled, the insurer didn’t need the photo because telephone calls to the residence, as well as the fact that the person’s car was in the driveway, should have been enough to determine that the person under surveillance was home.