Insurance investigators at odds with Canadian privacy commissioner over covert surveillance

The Canadian Association of Private Investigators (CAPI) believes the “tone and content” of the Privacy Commissioner of Canada’s latest draft Guidelines on Covert Surveillance in the Private Sector will “hinder the public goal of combating fraud.”
A draft copy of the guidelines is currently not available on the Web site of the Office of the Privacy Commissioner of Canada. But an old link to the document includes the following message by assistant privacy commissioner Elizabeth Dunham:
“The Privacy Commissioner of Canada has prepared a draft guidance document that sets out good practice rules for private sector organizations that are either contemplating or using covert video surveillance.
“Through our experience in investigating complaints about covert video surveillance under the Personal Information Protection and Electronic Documents Act (PIPEDA), we have identified a need to educate organizations on the obligation to ensure that covert video surveillance is conducted in the most privacy sensitive way possible.
“Although the use of covert video surveillance may be appropriate in some circumstances, we view the technology as being inherently intrusive.”
But the practice of covert surveillance is in fact less intrusive than more overt forms of investigation such as medical examinations and interviews with neighbours, counsel Norman Groot writes in a memo sent out to various private investigation associations on behalf of Investigation Counsel Professional Corporation (ICPC).
The ICPC memo is addressed to the membership of the Canadian Association of Private Investigators (CAPI), the Council of Private Investigators—Ontario (CPIO) and the Canadian Association of Special Investigation Units (CASIU).
It notes that insurance fraud is estimated to cost the property and casualty insurance industry Cdn$1.3 billion annually.
“The OPC’s suggestions, such as using surveillance only as a ‘last resort,’ would seriously stymie the purpose and intended outcomes of private investigations, and would facilitate the commission of fraud,” the memo notes.
“Furthermore, the proposed guidelines’ onerous provisions will result in increased costs to provide goods and services, because coming into compliance with the proposed guidelines will result in higher fraud premiums being built into prices.”
CAPI has submitted to the privacy commissioner that organizations should be able to use discretion in employing covert surveillance, subject to the standard of reasonableness under the circumstances, as consistent with s. 5(3) of PIPEDA.