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Plaintiff Uses PIPEDA to Argue against the Admissibility of Video Surveillance
The plaintiff in Ferenczy v. MCI Medical Clinics, [2004] O.J. No. 1775 (Sup. Ct.) argued the use of video surveillance taken after the coming into force of the Personal Information Protection and Electronic Documents Act ("PIPEDA") should not be admissible at trial since the taking of the video (in January 2004) and its subsequent disclosure to counsel were in contravention of PIPEDA.
The plaintiff sued her doctor for professional negligence in relation to his diagnosis and treatment of a cyst on her left wrist. She testified at trial that she could not grip properly with her left hand. The defendant sought to introduce in cross-examination video surveillance evidence of the plaintiff holding a Tim Horton's coffee cup continuously in her left hand. The plaintiff argued that the video surveillance was collected in the course of commercial activity without her consent and that this collection of information was prohibited by PIPEDA. Justice Dawson pointed out that under PIPEDA, the plaintiff could bring a complaint that would result in an investigation and report as to whether the collection of surveillance evidence was in violation of PIPEDA. This did not have any impact on the issue of the admissibility of evidence in the trial. Justice Dawson applied the common law to conclude that the evidence was admissible and that its prejudicial effect did not outweigh its probative value.
Justice Dawson then (in obiter) concluded that in any event, the recording of the videotape by a private investigator was not a "commercial activity" as defined under PIPEDA. Having regard to the defendant's purpose and intended use of the information, Justice Dawson concluded that the defendant was not collecting or recording personal information in the course of commercial activity. Further, the plaintiff had given implied consent to the collection and use of her personal information as the recording was in a public place and the plaintiff had put the degree of injury to her hand in issue by commencing the action. Justice Dawson stated that in any event, the activity was caught by the exception in section 1(1)(b) of PIPEDA, which permits the collection of personal information without the knowledge or consent of the individual in cases where the knowledge would compromise the availability of the information, and the collection of information was reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province. Justice Dawson concluded that the law of Canada or of a province included the common law, and specifically the law of tort. He also stressed the danger that could result from over-extending the reach of PIPEDA so as to transform civil and criminal litigation.
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