Yolanda Girao has been engaged in a longstanding dispute with Allstate Insurance over her entitlement to accident benefits. Allstate’s counsel in that dispute is Zarek Taylor Grossman Hanrahan LLP (ZTGH). As part of its review of the file, Allstate forward medical assessments of Girao’s condition to US consultants. Girao complained to the Privacy Commission of Canada (PCC), alleging that she had not consented to the disclosure. The complaint was dismissed: by putting her medical condition in issue, she had given implied consent to its disclosure for this purpose.

ZTGH posted the PCC’s report of the complaint, and a copy of its covering letters to Girao and Allstate, on its website. Girao made a further complaint to the PCC, on the grounds that this was unauthorised disclosure. This complaint was upheld; PCC reports, while not stated to be confidential, are not public either, and the covering letters revealed Girao’s name.

On appeal, Mosley J of the Federal Court noted that while much of the information in the report was available on the PCC website, the law firm had been reckless in posting material which contained Girao’s name without her consent. The judge cautioned that lawyers are presumed to know better and may be subject to higher statutory damages as a result. In this case, however, the personal information was not highly sensitive, the firm had not acted in bad faith and the breach was at the ‘low end’ of things. Girao was awarded $1,500 plus costs (not the $5 million she had claimed): Girao v Zarek Taylor Grossman Hanrahan LLP, 2011 FC 1070. [Link available here].