An Ontario Superior Court judge has rejected an argument, made by a plaintiff in a medical malpractice action, that surveillance video should not be received in evidence at trial because it contravened the Personal Information Protection and Electronic Documents Act (“PIPEDA”). That legislation came into force in Ontario on January 1, 2004. So far as we know, this is the first case in which an Ontario court has considered its effect on surveillance. The case is a decision of Justice Fletcher Dawson in Ferenczy v. MCI Medical Clinics and Weinstein.
The action arose out of treatment of a ganglion cyst on the plaintiff’s wrist. The defendant Weinstein, a physician, was defended by the Canadian Medical Protective Association (“CMPA”). Prior to trial, CMPA had retained a licensed private investigator to conduct surveillance on the plaintiff.
When the plaintiff testified at trial that it was very difficult for her to grasp a cup in her left hand, the defence sought leave to cross-examine her on the basis of an eight-minute segment of surveillance video which depicted her at Tim Horton’s, holding a coffee cup, apparently without difficulty.
Counsel for the plaintiff objected. One of the arguments raised was that the video surveillance was private information collected in the course of commercial activity without the consent of the plaintiff and that the Act prohibits the collection of such information or its use or distribution.
There has been speculation in the legal and insurance fields about how a court would approach this issue. Justice Dawson’s analysis can be summarized as follows:
- PIPEDA’s provisions do not deal with the admissibility of evidence. Instead, they lay down a procedure for complaints to be made to the Privacy Commissioner. But the legislation does not direct a court how to deal with evidentiary issues at trial.
- The plaintiff’s solicitor had argued 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 the Act.” Justice Dawson held instead, that the investigator was more accurately characterized as an agent of Dr. Weinstein.
- Viewed in this way, the investigator was really an extension of Dr. Weinstein himself, who, Justice Dawson felt, would not have been prevented by PIPEDA from collecting and making a record for his personal use (i.e., the defence of the action brought against him). This would bring him within an exception in s. 4(2)(b) of the Act.
- As an alternative ground, Dawson J. held that s. 7(1)(b) of PIPEDA also permitted the surveillance. That section contains an exception where “it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigation of a breach of an agreement or a contravention of the laws of Canada or a province”. Justice Dawson concluded that the wording of this section was broad enough to encompass the common law of tort. He also held that disclosure of the surveillance would compromise its availability.
- Finally, as a further alternative ground, Dawson J. held that other exceptions in the Act, relating to disclosure to comply with a subpoena or warrant or disclosure required by law, applied here.
We doubt that we have heard the last of this argument, but the first shot has been fired.