Lawsuits and Privacy Legislation – How do they Interact?

Written by litigator and mediator Irvin Schein and originally published at irvinschein.com. 

As litigators know, the Rules of Civil Procedure provide for what is usually referred to as the “Deemed Undertaking” between parties to a lawsuit not to disclose documents gathered in the course of a lawsuit to parties outside of that lawsuit unless compelled to by law.

This rule does not relate to the obligations of a party to disclose documents to the other party. The Rules specifically require every party to a lawsuit to disclose to the other party the documents in that party’s possession, custody or control that are relevant to the lawsuit.

On a number of occasions, I have requested production of a document from opposing counsel in the context of a lawsuit only to be met with a refusal for two reasons: firstly, because the document is allegedly not relevant, and secondly, because production of the document would cause the producing party to violate the Personal Information Protection and Electronic Documents Act (“PIPEDA”). PIPEDA is a data privacy legislation governing the manner by which private organizations collect, use and disclose personal information in the course of commercial business. Among other things, it regulates the basis upon which a party can and cannot disclose information that reveals personal information about a third party.

Such an objection gives rise to the broader question as to whether or not PIPEDA is ever available to a party attempting to avoid the disclosure of a document in the course of a lawsuit simply because it contains information about a third party.

The issue was specifically dealt with by the Office of the Privacy Commissioner of Canada last year in PIPEDA Case Summary Number 2016-011, resulting in an interesting ruling.

In that case, after a car accident leading to a lawsuit, the insurance company for the Defendant retained a psychiatrist to conduct a psychiatric assessment of the Plaintiff. After that was completed, the Plaintiff requested access to his personal information held by the psychiatrist.

The psychiatrist would only provide a limited amount of information including a redacted copy of his report. The Plaintiff felt that there was additional information to which he was entitled and also that some of the information held by the psychiatrist might not be accurate. Accordingly, he filed a complaint with the Office of the Privacy Commissioner and requested a ruling.

The Commissioner ruled that PIPEDA had no application to this situation. PIPEDA applies to the collection of information in the course of a commercial activity. In this case, the collection and use of the Plaintiff’s information by the psychiatrist took place for the purpose of defending a lawsuit and not a commercial activity. While there was commercial activity between the Defendant in the lawsuit and his insurance company, there was no commercial activity between the Plaintiff and the Defendant, and accordingly, none between the Plaintiff and the Defendant’s insurer or its psychiatrist.

Accordingly, it seems that PIPEDA cannot be relied on as a reason to refuse to produce personal information in the context of a lawsuit if the information was collected for a purpose other than commercial activity as between the parties. If such information is not protected by some type of privilege, PIPEDA cannot be relied on to avoid its production.