PIPEDA May Not Apply To Information Collected To Defend A Lawsuit

The OPC rules that collection or use of personal information to defend a lawsuit does not constitute "commercial activity"

A recent decision by the Office of the Privacy Commissioner of Canada (OPC) has confirmed that personal information collected or used in the course of defending a lawsuit is exempt from the Personal Information Protection and Electronic Documents Act (PIPEDA).1 In making its finding, the OPC applied a Federal Court decision, which held that such collection of evidence is protected by litigation privilege and is not a "commercial activity" contemplated by PIPEDA—even if third parties are retained to carry out or conduct that activity on the defendant's behalf. 2

What You Need To Know

The ruling confirms that access to personal information remains heavily restricted when protected by privilege. PIPEDA does not provide a plaintiff in a civil action with access rights to personal information that is collected by a defendant in order to defend the claim—the collection of evidence and defending against a lawsuit are not considered private-sector commercial activity subject to PIPEDA. The above applies even when a third party (such as an expert) is retained to collect and use the personal information. However, parties to civil litigation—and their lawyers—should not assume that this ruling eliminates their obligations to safeguard personal information collected in the course of litigation. Private-sector organizations should continue to consider PIPEDA when making decisions about the protection of personal information obtained for the purpose of litigation. Background and Implications for Civil Litigation

The OPC's decision dealt with an access request filed by the plaintiff in a motor vehicle accident lawsuit. Under PIPEDA, the plaintiff requested access to his personal information that was collected on behalf of the defendant's insurance company as part of an independent medical evaluation. The plaintiff was unsatisfied with the redacted copy of the report provided to him, filing a complaint with the OPC. Applying the 2010 Federal Court decision in State Farm, the OPC concluded that the matter was outside its jurisdiction because the collection of evidence in litigation is not commercial activity.

It is arguable that in...