Law Times

PAGE 10 FOCUS January 23, 2012 • Law Times BY MICHAEL McKIERNAN Law Times L awyers and law firms face a higher standard in dealing with personal information, according to the coun- sel for an insurance defence firm rebuked by a Federal Court judge for breaching the privacy of an oppos- ing litigant on a web site posting. Toronto-based Zarek Taylor Grossman Hanrahan LLP was ordered to pay Yolanda Girao $1,500 plus $500 in costs after Federal Court Justice Richard Mosley found the firm had disclosed her personal information by posting a report of findings by the privacy commis- sioner of Canada alongside a cover- ing letter that identified her as the applicant. The law firm acted for the respondents in the privacy case, the Allstate Insurance Co. of Canada. MASTER INVESTIGATIVE TECHNIQUES WITHIN THE BOUNDARIES OF THE LAW NEW PUBLICATION THE CANADIAN PRIVATE INVESTIGATOR'S PROFESSIONAL GUIDEBOOK CHRISTOPHER J. MENARY Protect yourself with a clear understanding of the best practices and laws used in the fields of private investigations and security. The Canadian Private Investigator's Professional Guidebook helps you perform your duties effectively within the boundaries of the law. Featuring insightful commentary by a renowned security instructor, this resource covers the sensitive issue of arrest, as well as investigations, interviews, surveillance and research. You'll also gain a firm grasp of related legislation to help ensure you're always in compliance with the law. Whether you're involved in private investigations or security, this resource provides the guidance you need to maintain a high standard of performance. ORDER # 983626-65199 $103 Softcover approx. 400 pages June 2011 978-0-7798-3626-0 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. A BENCHMARK FOR DEALING WITH EVERYDAY PRACTICE ISSUES Topics covered include: • Anton Piller Orders • Arrests • Background Checks • Bail • Charter of Rights and Freedoms AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 AUTHORITATIVE. INNOVATIVE. TRUSTED. • Criminal Code of Canada • Evidence • Freedom of Information • Privacy law Aird & Berlis LLP partner Dennis O'Leary represented the respondent in the Federal Court proceeding. "The message to lawyers is that they should exercise a greater degree of caution because it's clear law firms will be held to a higher, perhaps a much higher, level of care," O'Leary says. "It was an inadvertent breach, but technically, the judge found there was one and therefore made the finding and there was a tiny slap on the wrist for damages. They obvi- ously would have preferred there to be no finding but they accepted it and haven't appealed." Girao had asked for $5 million in damages for "public humiliation and emotional damage" as a result of the breach, but Mosley found there was no evidence to support those claims. Instead, he said in his Sept. 13, 2011, judgment that the infor- mation released without her con- sent was "personal but not highly sensitive" and that the breach was an isolated incident. "The respondent was careless in posting but did not act in bad faith," he wrote. Still, a damage award, Mosley said, would "send the message to lawyers and individuals with increased public responsibility that they must proceed prudently when dealing with private information." He continued: "Law firms pro- viding advice to clients who deal with the personal information of their customers must be knowledge- able about privacy law and the risks of disclosure. Lawyers also have a public duty to protect the integrity of the legal process." Girao's dispute with Allstate dates CANADIAN LAW LIST 2012 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: • an up-to-date alphabetical listing of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; • • contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law- related offices of importance. MORE THAN A PHONE BOOK Hardbound • Published February each year On subscription $149 • L88804-571-26084 One-time purchase $165 • L88804-571 • ISSN 0084-8573 Prices subject to change without notice,to applicable taxes and shipping & handling. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation CANADIAN LAW LIST www.lawtimesnews.com CLL - 1/4 pg - 3X.indd 1 1/18/12 4:36 PM back to a 2002 car accident. Allstate made a payment related to the crash, but Girao went after a declaration that she had suffered catastrophic impairment, something that would have increased her entitlement. Allstate refused to increase the ben- efits based on a 2006 assessment that indicated she didn't meet the threshold for catastrophic impair- ment. The case then went to arbitra- tion, at which point Allstate retained Zarek Taylor Grossman Hanrahan. Before the arbitration, Girao underwent a number of assessments performed by medical professionals in Ontario. Allstate sent the reports to the United States for review by medical consultants there with expertise in designations for cata- strophic impairment. That prompted Girao to file a complaint with the privacy commis- sioner in December 2007 against Allstate for disclosing her personal information to the consultants with- out her consent. In a February 2009 report of findings, the privacy commissioner found Girao's complaint wasn't well founded and that her consent was implied based on the fact that she had initiated the arbitration that put her medical history at issue. Believing it was a notable deci- Zarek Taylor sion, Grossman Hanrahan posted the privacy com- missioner's report on its web site. "They are an insurance bou- tique firm and their clients are some of the big insurers, so this Lawyers should exercise added caution in privacy matters, says Dennis O'Leary. is something that's of interest to them," says O'Leary. "If she hadn't been deemed to have given con- sent, it would have turned the practice on its ear because all of a sudden, all the defendants and insurers would have to go out and get the permission of the plaintiff basically to do a defence medical." The privacy commissioner's office also posted an altered sum- mary of the report on its own web site, but Girao complained to it again about the law firm's version because it identified the parties involved as Girao versus Allstate Insurance. This time, the privacy commissioner sided with Girao and Mosley agreed. "In choosing to publish the 2009 report to provide information to the industry and profession, the onus was on the respondent to ensure that they did not disclose personal information about the complainant without her consent," wrote Mosley. Girao's husband discovered the law firm's posting in May 2009, but she didn't launch her com- plaint about it until January 2010. In the intervening period, Girao had advanced another complaint to the privacy commissioner about Allstate's surveillance of her. The office later dismissed that case. During arguments, O'Leary sug- gested Girao's application was a col- lateral attack on the law firm and partner Eric Grossman because of his defence of Allstate's interests in the insurance litigation. But Mosley ruled Girao's motiva- tions were irrelevant to his decision on whether a breach had occurred but did take them into consideration in his assessment on the amount of damages she was entitled to. "I inferred from her impas- sioned oral representations that Mrs. Girao's sense of grievance relates more to the actions of Allstate in denying coverage than to the disclosure of her personal information," wrote Mosley. "But it was also clear that she bears considerable animus towards [the law firm] and Mr. Grossman in particular, for their part in deny- ing her what she believes to be her rightful benefits." The law firm didn't learn there was an issue with its posting until February when the privacy commis- ioner's office contacted it and had it removed within two hours. O'Leary believes the firm's fast action was a factor in the small size of the award against it. LT Lawyers face higher standard over privacy

• Cover