To date, the Ontario personal injury bar has assumed that assessors and “IME” companies performing examinations under s. 44 of the Statutory Accident Benefits Schedule (SABS) are subject to access requirements under the Personal Information Protection and Electronic Documents Act (PIPEDA). The “leading case” on IME’s and PIPEDA, Wyndowe v. Rousseau, a decision of the Federal Court of Appeal, held that a doctor appointed to perform an independent medical examination under a disability insurance policy had to provide access to a final report and notes. The disability insurer’s internal process under the private insurance policy would not have been a formal dispute resolution process and therefore not exempt from PIPEDA. Under clause 9(3)(d) of PIPEDA, an organization is not required to give access to personal information if it was “generated in the course of a formal dispute resolution process.” Is a s. 44 examination subject to that exemption? The federal Office of the Privacy … Read More
A company learns its cybersecurity is vulnerable to hacking but fails to implement preventative measures. Hackers attack and access the private data of clients. Can these clients sue the company for the tort of privacy invasion (“intrusion upon seclusion”) or can the company escape liability because it has only allowed a third-party invasion? The question turns on the definition of invasion. As held in the leading case of Jones v Tsige, the tort of intrusion upon seclusion consists of three elements: Intentional or reckless conduct; That invades the defendant’s privacy; and The invasion must reasonably be regarded as highly offensive causing distress, humiliation or anguish. Does allowance of a third-party invasion meet the second requirement? In deciding which of two actions should proceed as a class action in Ontario, the Court in Agnew-Americano v Equifax Canada expressed preliminary support favouring the possibility of liability for third-party invasions. The Court held claims that … Read More
Nick Poon was recently asked to comment on privacy issues associated with filming in public places for the Toronto Star. Read the Toronto Star article here: Chinatown filming notice provokes heated debate on social media. If you have a privacy issue or contract dispute in the field of media and entertainment, please contact us for an initial consultation.