Privacy Commissioner of Canada

The Privacy Commissioner of Canada appears to have an interest in the insurance industry.

From Canadian Underwriter:

The Federal Court of Canada in Halifax is scheduled to hear State Farm Mutual Automobile Insurance Company v. the Privacy Commissioner of Canada on Apr. 13, 2010. The case concerns State Farm”™s challenge of the privacy commissioner”™s jurisdiction in an insurance fraud investigation.

In March 2005, Jennifer Vetter, a State Farm insured, was involved in a motor vehicle accident with Gerald Gaudet. State Farm hired private investigators who conducted video surveillance of Gaudet. Pursuant to the Personal Information Protection and Electronic Documents Act (PIPEDA), Gaudet requested the personal information State Farm had compiled, including copies of the surveillance reports and tapes. State Farm denied the request stating PIPEDA did not apply to any information it held regarding Gaudet. When the Privacy Commissioner intervened, State Farm argued the Office of the Privacy Commissioner had no jurisdiction regarding the disclosure of surveillance information. The New Brunswick Court of Appeal ruled in early 2009 that the Federal Court was the proper jurisdiction to hear the case.

And from the Privacy Commissioner:

In this case, the State Farm Mutual Automobile Insurance Company (“State Farm”?) questioned the Privacy Commissioner”™s jurisdiction to investigate a refusal to provide access to personal information and her power to compel the production of documents during the course of an investigation. On July 9, 2007, State Farm initiated an application in the Court of Queen”™s Bench of New Brunswick for a declaration that:

  • PIPEDA did not apply as State Farm was not engaged in “commercial activities”? when it collects, uses or discloses personal information in the course of defending its insured against litigation initiated by the complainant;
  • If PIPEDA does apply, PIPEDA was enacted outside the powers allotted to Parliament;
  • The Privacy Commissioner lacked the authority to investigate the complaint; and
  • The Privacy Commissioner has no right to request or compel from State Farm information necessary to conduct an investigation.

The Privacy Commissioner filed a preliminary motion to have State Farm”™s application dismissed or stayed on the ground that the Federal Court was the more appropriate forum. The motion was granted in January 2008. The Court of Queen”™s Bench determined that the Federal Court was the more appropriate forum to determine State Farm”™s application, which involved questions of both constitutional validity and a judicial review of the Privacy Commissioner”™s authority. Because the Federal Courts have exclusive jurisdiction over applications for judicial review of the Privacy Commissioner, the Federal Court was found to be the most appropriate forum.

State Farm appealed to the New Brunswick Court of Appeal and a hearing was held on September 10, 2008. On January 22, 2009, the New Brunswick Court of Appeal dismissed State Farm”™s appeal and affirmed our position that State Farm”™s application is, for all intents and purposes, an application for judicial review that falls within the exclusive jurisdiction of the Federal Court. The Court noted that regardless of how State Farm identifies its claim, it is in substance a challenge to the actions and decisions of the Office that should be heard by the Federal Court.

State Farm sought leave from the Federal Court for an extension of time to file a similar application before the Federal Court in February 2009, which was granted April 8, 2009.

It will be interesting to see how the court elects to interpret the mandate of the Privacy Commissioner’s jurisdiction. And it is quite empowering for an individual to challenge the acts of a business with respect to the collection and distribution of personal information. But without authority, businesses would not be held to account.

The Privacy Commissioner provides a guide of PIPEDA for individuals here.

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