Defending against a civil lawsuit not considered a commercial activity

PIPEDA Case Summary #2016-011

July 18, 2016

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The Complaint

As a result of a motor vehicle accident between two individuals, one individual (the “plaintiff”) commenced civil litigation proceedings against the other individual (the “defendant”) and his automobile insurance company. A psychiatrist, retained by an independent medical evaluation provider on behalf of the defendant’s insurance company, carried out an assessment of the plaintiff’s well-being. Following the completion of this assessment, the individual requested access to his personal information held by the psychiatrist.

After not receiving a response to his access request that met with his satisfaction, the plaintiff contacted the psychiatrist on a number of occasions to reiterate his request. In reply, the psychiatrist provided the plaintiff with some information, including a redacted copy of a report the psychiatrist had completed.

Communications between the plaintiff, the psychiatrist and the parties’ legal representatives continued for a period of time. It is clear from the correspondence that the plaintiff believed that there was additional information to which he was entitled and with which he had not been provided. He also had some concerns regarding the accuracy of his personal information held by the psychiatrist.

Being dissatisfied with the outcome of his request, the plaintiff filed a complaint with our Office.

Jurisdiction

Our Office determined that the matter was outside the Commissioner’s jurisdiction. In the circumstances, the collection and use of the plaintiff’s personal information by the psychiatrist was not conducted in the course of a commercial activity, as defined in section 2 of PIPEDA, but rather for the purpose of defending against a civil lawsuit commenced by the plaintiff. Without commercial activity, the Office of the Privacy Commissioner of Canada does not have jurisdiction to investigate the plaintiff’s allegations related to the psychiatrist’s refusal to provide access to the plaintiff’s personal information.

In making this finding, our Office applied the Federal Court’s decision in State Farm Mutual Automobile Insurance Company v. The Privacy Commissioner of Canada, 2010 FC 736, which held that the collection of personal information about a plaintiff for the purpose of defending a lawsuit brought by the plaintiff is not a commercial activity to which PIPEDA applies; and where an activity is exempt from PIPEDA, if third parties are retained to carry out that activity on a person’s behalf, then the activity remains exempt from PIPEDA. In the circumstances, while there was commercial activity between the defendant and the insurance company as a result of the defendant being insured by the insurance company, there was no commercial activity between the plaintiff and the defendant, and likewise, no commercial activity between the plaintiff and the defendant insurance company or its outside medical expert.