Privacy issues and litigation

Question 1

PIPEDA applies to

Answer 1

organizations that collect, use, or disclose personal information in the course of commercial activities.

Question 2

Organizations are permitted to collect personal information through surveillance if the collection falls under

Answer 2

one of the exceptions in section 7(1)(b) of PIPEDA and the purpose of collection through surveillance are reasonable under section 5(3)

Question 3

What are the PIPEDA exceptions in section 7(1)(b)?

Answer 3

• It is reasonable to expect that the collectio WITH THE KNOWLEDGE or consent of the person would compromise the availability or accuracy of the information
• the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province
• the information is contained in a witness statement and the collection is necessary to assess, process, or settle an insurance claim
• it was produced by the individual in the course of their employment, business or profession and the collection is consistent with the purposes for which the information was produced.

Question 4

What purposes of collection are considered reasonable under section 5(3) of PIPEDA?

Answer 4

Purposes that a reasonable person would consider are appropriate in the circumstances

Question 5

Per Eastmond v Canadian Pacific Railway, what four criteria assess the reasonableness of collection per section 5(3) PIPEDA?

Answer 5

• are surveillance and recording demonstrably necessary to meet a specific need?
• are surveillance and recording likely to be effective in meeting that need?
• is the loss of privacy proportional to the benefit gained?
• is there a less privacy-invasive way of achieving the same end?

Question 6

What proceeding does not fall under PIPEDA permitted disclosure?

Answer 6

the Privacy Commissioner of Ontario because they do not act as a judicial or quasi-judicial body in investigating privacy complaints.

Question 7

What is important for paralegals to note in terms of paralegal-client privelege?

Answer 7

The issue has not been conclusively decided by the courts, but this should not preclude the paralegal from asserting privelege

Question 8

Per section 12 of PIPEDA, the Commissioner must investigate a complaint that an org has failed to provide them with access to their information unless:

Answer 8

• the complainant ought first to exhaust grievance or review procedures otherwise reasonably available
• the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under the laws of Canada, other than this part, ot the laws of a province, or
• the complaint was not filed within a reasonable period after the day on which the subject matter of the comaplint arose