Keywords
case comment, PIPEDA, admissibility of surveillance evidence
Abstract
One of the most common uses of surveillance is in the area of evidence gathering for investigation by litigators. Private investigators have long been retained for this purpose, and law enforcement officers routinely utilize surveillance devices to assist in the prosecution of a crime. The admissibility of video surveillance evidence obtained by private and government investigators is obviously not a new issue. What has come to the fore- front is the application of the Personal Information Protection and Electronic Documents Act in the context of video surveillance evidence, and its impact on civil litigators. Privacy interests inherent in the collection, use, and disclosure of personal information may be protected under PIPEDA, which clearly adds another consideration to the issue of admissibility of surveillance evidence. The impact of PIPEDA on video surveillance evidence in the employment context has been addressed by the federal Privacy Commissioner, who has assessed the legitimacy of surveillance on a ‘‘reasonableness’’ standard. The Ontario Superior Court, in Ferenczy v. MCI Medical Clinics, has now interpreted PIPEDA in the litigation context in which a private investigator was used to gather information by video surveillance. While much of Dawson J.’s decision is obiter, his analysis with respect to video surveillance and PIPEDA may be an indication of how courts will deal with investigative evidence col- lected in the litigation process. The end result in Ferenczy is likely correct, but Dawson J.’s PIPEDA analysis appears to be a fairly transparent effort to avoid transforming litigation ‘‘into something very different than it is today’’. While the insurance industry may have breathed a sigh of relief, for privacy advocates, this deci- sion is likely a cause for concern.
Recommended Citation
Anne Uteck, "Video Surveillance, Evidence and PIPEDA: A Comment on Ferenszy v. MCI Medical Clinic" (2004) 3:3 CJLT.
Included in
Computer Law Commons, Intellectual Property Law Commons, Internet Law Commons, Privacy Law Commons, Science and Technology Law Commons