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Privacy proposal rapped as unrealistic

|Written By Glenn Kauth

Late last year, the federal privacy commissioner’s office ruled a private investigation firm erred in taking pictures of a man suspected of making a bogus disability claim.

‘I believe that civil litigation is outside the jurisdiction of PIPEDA,’ says David Young. ‘It’s an exclusive area of provincial jurisdiction, which PIPEDA should not apply to.’

An investigator got the shot by showing up at the man’s door to present him a magazine as a gift for participating in a phone survey. After learning of the real investigator’s real intent, the man complained to the privacy commissioner that the agency had breached his privacy.

The agency, working for an insurance company, argued it took the picture in order to verify the man’s identity so it could be sure the surveillance it was undertaking was targeting the right person. But the federal privacy office ruled otherwise.

Citing principles under the Personal Information Protection and Electronic Documents Act that state investigators must limit what they do to what is necessary for their job, the privacy office decided the firm already had other methods of confirming the man’s identity, including his phone number, address, and vehicle information. As a result, it determined the firm’s actions were excessive and therefore ordered it to apologize to the man.

In doing so, the privacy commissioner’s office reaffirmed its policies on covert surveillance, which include a requirement that investigators exhaust all other ways of getting the information before turning to hidden cameras.

But now, Canada’s private investigation industry worries the federal authority may be going even further with new draft guidelines on surveillance that it is now working on finalizing. Of most concern is a proposal to make firms blur images of third parties who are captured on video. That means that if the person isn’t the subject of, or relevant to, the investigation, firms would have to pixelate their faces.

Bill Joynt, the past president of the Canadian Association of Private Investigators, criticizes the proposal as unrealistic and an example of the privacy commissioner’s office “trying to make laws without legislation.

“They’re saying that even in a public place, there’s an expectation of privacy, but they’re wrong.”

Of particular concern, he notes, are the cost and technical considerations of pixelating images. “Basically, to get rid of 20 minutes of video is six to eight hours of work,” he says.

Debbie Macdonald, of the firm C3 Investigations in Stoney Creek, argues authorities need to reconsider the proposal. “The limitations have to be fully reviewed. There’s no way we can put pixilation and things like that in there,” she says.

“My issue with it is we’re tampering with evidence, for one thing. Plus, when we do an investigation, we don’t always know if the person that we videotaped with the claimant or with the subject isn’t [relevant] to the case. They could be their housekeeper. They could be a potential witness when it goes to court.”

Macdonald, who is also president of the Council of Private Investigators – Ontario, notes that her hope is that the privacy commissioner’s office will back down from the proposal. “I think their concern was documentation and that the videotapes were not going to be exposed, which they’re not.

Private investigators have them locked under lock and key, and it’s not like they’re being shown. They go to the client, and that’s as far as it goes.”

Joynt, however, argues that the proposal is just the latest example of privacy laws unduly restricting private investigators from doing their work. “The problem is that they restrict information so much in Canada.” In the United States, for example, the courts will issue search warrants allowing private investigators to get evidence in some cases, something that would never happen here, he notes.

In the absence of such powers, the only recourse for investigators is to get information by surveillance, but now privacy laws may restrict that further.

“At the same time, you have public law enforcement making fraud practically legal in Canada . . . They don’t have the resources available for it, and it’s not one of the crimes that’s a priority for them,” says Joynt.

Of course, some rulings on PIPEDA have gone in private investigators’ favour. “PIPEDA applies to organizations,” says David Young, the co-chairman of the privacy group at Lang Michener LLP in Toronto. For firms, that means that the client is the organization, while the private investigator is merely an agent of it.

At the same time, an Ontario Superior Court ruling in the case of Ferenczy v. MCI Medical Clinics established that PIPEDA doesn’t overrule the civil litigation system, an important point in protecting the viability of private investigations.

In that case, plaintiff Denise Ferenczy was suing Dr. Gary Weinstein for professional negligence over a medical diagnosis. In response, the defendant had hired a private investigator to videotape her.

But arguing that the move contravened PIPEDA, Ferenczy attempted to have the evidence thrown out. The judge, however, ruled that her complaint about the videotapes under PIPEDA didn’t negate their admissibility in court.

“At the outset, I wish to point out that the act does not contain a provision which prohibits the admissibility of personal information collected or recorded in contravention of the act,” Justice Fletcher Dawson wrote in the ruling.

“In my view, this is the most important existing case law on the role of the private investigator under PIPEDA,” says Young, who notes the ruling essentially declares that the federal privacy law doesn’t supercede the civil litigation system.

Still, for some lawyers the decision doesn’t go far enough. “Where there is difficulty is that that addresses the collection stage,” says Young. That means that while it’s possible for investigators to gather private information, the act doesn’t address the use and disclosure of it.

“If it’s not in the litigation process, there are very limited circumstances by which the collector can disclose the information,” says Young, adding that the authority in Ferenczy remains limited to an Ontario Superior Court ruling.

As a result, Young says the Canadian Bar Association’s national privacy and access law section has submitted to Industry Canada, which is undertaking a statutory review of PIPEDA, that it change the act to explicitly state that it doesn’t overrule provincial civil litigation systems.

For Young, the issue comes down to a constitutional question. “I believe that civil litigation is outside the jurisdiction of PIPEDA,” he says. “It’s an exclusive area of provincial jurisdiction, which PIPEDA should not apply to.”

Such questions about the law, then, leave private investigators miffed at the ways PIPEDA continues to affect their ability to do their jobs. For Macdonald, she believes the act has actually improved the profession’s reputation by setting standards firms must follow. Still, she’s concerned about the act’s growing reach.

“What I really don’t understand about PIPEDA is originally it came out because of the telemarketers. They were telemarketing people like crazy, and people were getting fed up with their personal information being put in a database. But unfortunately, it funnelled over to every industry out there.”

For its part, the federal Office of the Privacy Commissioner of Canada says it is reviewing feedback it has received on the draft guidelines on surveillance with a goal of finalizing them by the end of March.

But Joynt says that if authorities go ahead with the pixilation requirement, organizations such as the Canadian Association of Private Investigators will recommend firms challenge it in court. “Our advice to any private investigation companies or lawyers that are subject to these kinds of complaints . . . [is to] fight it because the only venue where you’re going to [be] heard at all is in a court.”

The principle is an important one, he adds, because the industry needs to protect its ability to investigate. “What has to be recognized both by the public and the privacy folks is that what we do serves a purpose. People have a right to defend themselves against people that have defrauded them, lied to them, or cheated them.”

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