The July 9, 2010 decision of the Federal Court of Appeal in State Farm Mutual Automobile Insurance Company v. Privacy Commissioner of Canada and the Attorney General of Canada has provided guidance on whether a plaintiff in a personal injury tort action may obtain access to information over which solicitor-client privilege is claimed, by making a request under the Personal Information Protection and Electronic Documents Act (“PIPEDA”).

The Facts

The plaintiff was involved in a motor vehicle accident with the defendant in New Brunswick. The defendant’s insurer, State Farm, anticipated that the plaintiff would make a claim for damages and thus retained legal counsel to defend its insured for the potential litigation. At its counsel’s recommendation, State Farm hired private investigators who obtained surveillance video of the plaintiff both before and after the commencement of his action in New Brunswick.

Shortly before initiating his action, the plaintiff, through his counsel, requested any and all information that State Farm had collected on him, in particular, copies of any surveillance reports and/or tapes, pursuant to PIPEDA. State Farm denied this request on the ground that PIPEDA did not apply. The plaintiff then applied to the Privacy Commissioner under PIPEDA, alleging that State Farm had violated the legislation by denying access to his personal information, disclosing his personal information to a third party without his consent and not providing adequate safeguards to protect the information. In response to this complaint, State Farm took the position that the Privacy Commissioner had no jurisdiction to proceed under PIPEDA.

The matter eventually made its way before the Federal Court.

The Decision

The court’s decision turned on whether the collection of evidence by an insurer, or its counsel, acting in the defence of a third party tort action constituted a “commercial activity” within the meaning of PIPEDA. If it did, then it would be prohibited under subsection 7(1) of PIPEDA unless the plaintiff consented to the collection. The court held that the primary characterization of the activity or conduct in issue was the dominant factor in assessing whether the activity or conduct had a commercial character.

The court ultimately decided that the collection of surveillance evidence in the defence of a third party tort action did not constitute a commercial activity as contemplated by PIPEDA. In doing so, it noted that the relationships between State Farm, its counsel and its insured, which the plaintiff had submitted were commercial in nature, were incidental to the primary non-commercial activity or conduct in issue, that is the defence of the action. In coming to this finding, however, the court stated that its decision did not necessarily mean that the Privacy Commissioner was without authority to conduct an investigation under PIPEDA in response to a complaint. However, where the investigation raised the issue of solicitor-client or litigation privilege, the Privacy Commissioner’s authority would be limited.