Surveillance & the Privacy Laws in Canada – Duncan Investigations Inc.

This case involves a patient named D. Ferenczy.  She sued her doctor for professional negligence in the diagnosis and the treatment of a cyst located on the inner part of her left wrist. The procedure was carried out on February 17, 1999. The plaintiff, D. Ferenczy, claimed that as a result of the failed procedure, she was unable to hold small items for a long period of time with her left hand. She further claimed that she was unable to work, and she subsequently claimed she suffered a loss of income.

The defendant, the doctor, disputed her claim. A private investigator was retained by the Canadian Medical Protective Association to dispute the credibility of the plaintiff’s evidence. This association provides defense assistance to physicians who are being sued for medical malpractice claims. The private investigator conducted a surveillance on Ms. Ferenczy and collected an eight minute video surveillance footage of Ms. Ferenczy holding a coffee cup at a coffee shop without any visible signs of physical impairment. This investigation was carried out without Ms. Ferenczy’s consent.

The Issue:
Whether or not the video tape could be admitted as evidence against Ms. Ferenczy as the Counsel for Ms. Denise Ferenczy argued that the taking of the video and its disclosure contravened the Personal Information and Protection of Electronics Act [PIPEDA], and therefore submitted the evidence rendered be inadmissible.

Court Ruling
The court ruled that the PIPEDA applies to personal information that is collected and disclosed for “commercial purposes”, and that defending a liability claim is not considered a commercial activity but that the collection of the information is being used for the purposes of defending the doctor in a civil lawsuit. The court also ruled that the collection, use, and disclosure of the videotape would not contravene the PIPEDA on the basis that private investigators are acting as agents for their clients, and furthermore, Ms. Ferenczy implicitly consented to the collection of the videotape evidence when she filed action against the Defendant. Justice Dawson further ruled that the collection of the videotape is related to the investigation of a claim, and therefore ruled the videotape evidence tendered at trial be admissible.

Janie Duncan is a licensed investigator in the Province of Manitoba

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