Patrick Flaherty comments on how PIPEDA can affect the collection, use and disclosure of personal information in litigation, in Law Times

Focus: Courts Offer Differing Views on Rules for Lawsuits

January 21, 2013

Many civil litigation files involving a significant amount of documentation contain personal information not necessarily relevant to the case. Given the legislative context for privacy law in Canada, the presence of that information can, according to the Supreme Court of Canada, raise significant privacy issues.

The Personal Information Protection and Electronic Documents Act "is complex and so broadly worded that a reasonable argument could be made to extend its reach so far as to transform both civil and criminal litigation into something very different than it is today," the court observed in Canada (Privacy Commissioner) v. Blood Tribe Department of Health.

Because lawyers are subject to PIPEDA, the legislation has the potential to significantly affect how parties and their counsel may collect, use, and disclose personal information in litigation.

As the federal privacy commissioner noted in Privacy Handbook for Lawyers: PIPEDA and Your Practice, no general litigation exemption exists in the act (although such an exemption does appear in provincial privacy legislation in Alberta, British Columbia, and Quebec).

"It thus falls to counsel to consider the extent to which his or her freedom to collect, use, and disclose personal information is limited by PIPEDA and the rights it vests in individuals to control collection, use, and disclosure of their information," says Patrick Flaherty of Torys LLP.

"The privacy commissioner of Canada has expressed the view that both Ferenczy and State Farm should not necessarily be viewed as authority that PIPEDA does not apply to litigation generally, particularly since both cases were decided in the factual context of activities in defence of personal injury claims against individuals, which is said to be different than, for example, litigation by or between commercial organizations," Flaherty notes.

Read the full article here.

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