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Law Times • January 26, 2009 NEW An online resource tool 1.800.263.3269 Bestcase earlug.indd 1 3/26/08 11:52:01 AM Focus On FORENSICS/PRIVATE INVESTIGATORS Privacy proposal rapped as unrealistic PIs worry guidelines will be too restrictive BY GLENN KAUTH Law Times L ate last year, the federal privacy commissioner's office ruled a pri- vate investigation firm erred in taking pictures of a man suspected of making a bogus disability claim. An investigator got the shot by show- ing up at the man's door to present him a magazine as a gift for participating in a phone survey. After learning of the real investigator's real intent, the man com- plained to the privacy commissioner that the agency had breached his privacy. The agency, working for an insurance company, argued it took the picture in order to verify the man's identity so it could be sure the surveillance it was undertaking was tar- geting the right person. But the federal pri- vacy office ruled otherwise. Citing principles under the Personal Information Protection and Electronic Documents Act that state in- vestigators must limit what they do to what is necessary for their job, the privacy office decided the firm already had other methods of confirming the man's identity, including his phone number, address, and vehicle in- formation. As a result, it determined the firm's actions were excessive and therefore ordered it to apologize to the man. In doing so, the privacy commissioner's office reaffirmed its policies on covert surveil- lance, which include a requirement that inves- tigators exhaust all other ways of getting the information before turning to hidden cam- eras. But now, Canada's private investigation industry worries the federal authority may be going even further with new draft guidelines on surveillance that it is now working on final- izing. Of most concern is a proposal to make firms blur images of third parties who are captured on video. That means that if the person isn't the subject of, or relevant to, the investigation, firms would have to pixelate their faces. Bill Joynt, the past president of the Ca- nadian Association of Private Investiga- tors, criticizes the proposal as unrealistic and an example of the privacy commis- sioner's office "trying to make laws with- out legislation. "They're saying that even in a public place, there's an expectation of privacy, but they're wrong." Of particular concern, he notes, are the cost and technical considerations of pixelating images. "Basically, to get rid of 20 minutes of video is six to eight hours of work," he says. Debbie Macdonald, of the firm C3 In- vestigations in Stoney Creek, argues au- thorities need to reconsider the proposal. "The limitations have to be fully reviewed. There's no way we can put pixilation and things like that in there," she says. "My issue with it is we're tampering with evidence, for one thing. Plus, when we do an investigation, we don't always know if the person that we videotaped with the claimant or with the subject isn't [relevant] to the case. They could be their housekeeper. They could be a potential witness when it goes to court." Macdonald, who is also president of the Council of Private Investigators – Ontario, notes that her hope is that the privacy commissioner's office will back down from the proposal. "I think their concern was documentation and that the videotapes were not going to be exposed, which they're not. Private investigators have them locked under lock and key, and it's not like they're being shown. They go to the client, and that's as far as it goes." Joynt, however, argues that the pro- posal is just the latest example of privacy laws unduly restricting private investiga- tors from doing their work. "The prob- lem is that they restrict information so much in Canada." In the United States, for example, the courts will issue search warrants allowing private investigators to get evidence in some cases, something that would never happen here, he notes. In the absence of such powers, the only recourse for investigators is to get infor- mation by surveillance, but now privacy laws may restrict that further. "At the same time, you have public law enforcement making fraud practically legal in Canada . . . They don't have the resources available for it, and it's not one of the crimes that's a priority for them," says Joynt. Of course, some rulings on PIPEDA have gone in private investigators' favour. ity of personal information collected or recorded in contravention of the act," Justice Fletcher Dawson wrote in the ruling. "In my view, this is the most important existing case law on the role of the private investigator under PIPEDA," says Young, who notes the ruling essentially declares that the federal privacy law doesn't super- cede the civil litigation system. Still, for some lawyers the decision doesn't go far enough. "Where there is difficulty is that that addresses the col- lection stage," says Young. That means that while it's possible for investigators to gather private information, the act doesn't address the use and disclosure of it. "If it's not in the litigation process, 'I believe that civil litigation is outside the jurisdiction of PIPEDA,' says David Young. 'It's an exclusive area of provin- cial jurisdiction, which PIPEDA should not apply to.' "PIPEDA applies to organizations," says David Young, the co-chairman of the privacy group at Lang Michener LLP in Toronto. For firms, that means that the client is the organization, while the pri- vate investigator is merely an agent of it. At the same time, an Ontario Superior Court ruling in the case of Ferenczy v. MCI Medical Clinics established that PIPEDA doesn't overrule the civil litigation system, an important point in protecting the vi- ability of private investigations. In that case, plaintiff Denise Ferenczy was suing Dr. Gary Weinstein for professional neg- ligence over a medical diagnosis. In re- sponse, the defendant had hired a private investigator to videotape her. But argu- ing that the move contravened PIPEDA, Ferenczy attempted to have the evidence thrown out. The judge, however, ruled that her complaint about the videotapes under PIPEDA didn't negate their admis- sibility in court. "At the outset, I wish to point out that the act does not contain a provision which prohibits the admissibil- there are very limited circumstances by which the collector can disclose the in- formation," says Young, adding that the authority in Ferenczy remains limited to an Ontario Superior Court ruling. As a result, Young says the Canadian Bar Association's national privacy and access law section has submitted to Industry Canada, which is undertaking a statutory review of PIPEDA, that it change the act to explic- itly state that it doesn't overrule provincial civil litigation systems. For Young, the issue comes down to a constitutional question. "I believe that civil litigation is outside the jurisdiction of PIPEDA," he says. "It's an ex- clusive area of provincial jurisdiction, which PIPEDA should not apply to." Such questions about the law, then, leave private investigators miffed at the ways PIPEDA continues to affect their ability to do their jobs. For Macdonald, she believes the act has actually improved the profession's reputation by setting standards firms must follow. Still, she's concerned about the act's growing reach. "What I really don't understand about PIPEDA is originally it came out because of the telemarketers. They were telemar- keting people like crazy, and people were getting fed up with their personal in- formation being put in a database. But unfortunately, it funnelled over to every industry out there." For its part, the federal Office of the See Privacy, page 14 PAGE 9 LawList_LT_Jan26_09.indd 1 www.lawtimesnews.com 1/23/09 10:15:27 AM