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Evidence Admissible Despite Potential PIPEDA Violation
February 14, 2005

An Ontario Superior Court of Justice has ruled that video surveillance evidence is admissible for litigation purposes notwithstanding that the evidence may have been collected in violation of the federal Personal Information Protection and Electronic Documents Act (PIPEDA).

The plaintiff sued her doctor for professional negligence in relation to his diagnosis and treatment of a cyst on her left wrist. The plaintiff testified that as a result of complications associated with the aspiration of the cyst, she developed severe and ongoing problems with her wrist, forearm and hand which left her unable to even hold a coffee cup. She alleged the complications ultimately led to the loss of her employment. In light of the plaintiff’s claims, the defendant applied for leave to admit for cross examination purposes an eight minute video clip showing the plaintiff continuously holding a coffee cup in her left hand. The plaintiff argued against the admissibility of the video on the basis that the surveillance contravened the PIPEDA.

The Court rejected the plaintiff’s argument, pointing out that the PIPEDAdoes not contain a provision which prohibits admissibility of personal information collected or recorded in contravention of the Act. The Court also stated that a litigant’s complaint to the federal Privacy Commissioner does not have any impact upon the admissibility of evidence at trial. The Court cited the well known principle that all relevant evidence is admissible, subject to a discretion to exclude where the probative value is outweighed by prejudicial effect.

The Court went on to find that the collection of the surveillance evidence did not contravene the PIPEDA in any event. The PIPEDA applies to the collection, use and disclosure of personal information in the course of commercial activity. Here, the defendant was collecting the information nor for commercial purposes, but for his personal use to defend against allegations brought by the plaintiff. Further, the Court concluded that because the recording was made in a public place, the plaintiff had given implied consent to the collection and use of her personal information insofar as it related to the lawsuit.

In British Columbia, the Personal Information Protection Act (PIPA) and Freedom of Information and Protection of Privacy Act (FOIPPA) both provide that the statute does not limit the information available by law to a party to a proceeding.

Ferenczy v. MCI Medical Clinic, [2004] O.J. No. 1775 (Sup. Ct.)