July 26, 2010 by Canadian Underwriter
Using surveillance to help mount a defence in a civil legal action is not a “commercial activity” under Canada’s privacy law and is therefore not bound by the Personal Information Protection and Electronic Documents Act (PIPEDA), the Federal Court of Canada has ruled.
Nevertheless, the Privacy Commissioner does have jurisdiction to investigate the claim, the court also found.
In State Farm Mutual Automobile Insurance Company and Privacy Commissioner of Canada, State Farm collected surveillance and evidence on Gerald Gaudet on behalf of its insured policyholder, Jennifer Vetter.
Gaudet launched a civil tort suit against Vetter related to a 2005 automobile accident. Gaudet demanded that State Farm hand over any and all documentation the insurer had collected on him, arguing that to collect evidence and to use surveillance without his knowledge or permission is a violation of his rights under PIPEDA.
State Farm argued the evidence fell outside the scope of PIPEDA and that it was protected by client-attorney privilege. The insurer argued further that it was not within the privacy commissioner’s jurisdiction to investigate the claim.
Federal Court Justice Robert Mainville concluded the primary activity at the centre of the case was the collection of evidence on a plaintiff by a defendant in order to mount a defence, which is not a commercial activity. “Then that activity or conduct remains exempt from PIPEDA even if third parties are retained by an individual to carry out that activity or conduct it on his or her behalf.”
Justice Mainville went on to say the insurer-insured and attorney-client relationships “are simply incidental to the primary non-commercial activity or conduct at issue, namely the collection of evidence…
“I therefore rule that the investigation reports and related documents and videos concerning Mr. Gaudet and prepared by or for State Farm or its lawyers to defend Ms. Vetter in the civil tort action taken against her by Mr. Gaudet are not subject to PIPEDA.”
But, the Court would not go so far as to say the matter was beyond the privacy commissioner’s jurisdiction to investigate.
“Indeed, though the reports and related documents and videos are not subject to PIPEDA, there must nevertheless still be mechanisms in place to test the bona fides of the exemption or non-application claim.”