Just before Christmas, the Ontario Superior Court of Justice released a decision on an interlocutory motion to strike portions of an affidavit. The applicant had not relied upon PIPEDA in its notice of motion, but argued that PIPEDA supported the motion as part of the evidence in question had been collected from a computer without consent. Justice Cullity dealt with the PIPEDA argument and ultimately ruled that the federal privacy law has its own procedure for redress. He also declined to find whether PIPEDA was violated in this case. Once again, the Courts have declined to be persuaded by an applicant's argument that the federal privacy law should exclude evidence in a civil matter.
Osiris Inc. v. 1444707 Ontario Ltd., 2005 CanLII 47731 (ON S.C.)[83] Finally, I should refer to Mr Belmont's reliance
on the provisions of the Personal Information Protection and Electronic
Documents Act, S.C. 2000, c. 5 in a factum he filed in support
of the motion by Osiris. This was not a ground mentioned in the notice of
motion. In the factum, and at the hearing, Mr Belmont submitted that VDG had
clearly violated the prohibitive provisions of the statute by obtaining, and
using, the Documents without the consent of their owners. This violation was
said to be an additional ground on which the document should be excluded from
the record.[84] For the following reasons, I do
not accept Mr Belmont’s submission. The statute creates a procedure in which
complaints of breaches of its provisions are to be received by the federal
privacy commissioner and under which hearings maybe conducted in the Federal
Court after the Commissioner has made a report. I do not believe that, on this
motion, I can properly be expected to bypass that procedure and, in effect,
usurp the statutory jurisdiction under the guise of deciding a question of
admissibility. Even if I were permitted to do this, it is by no means clear to
me that either VDG, or Mr Nasir, has infringed the provisions of the statute.[85] The general statutory prohibition is contained
in section 5 (3) and provides that an "organization" (including a person or a
partnership) may collect, use or disclose personal information only for purposes
that a "reasonable person would consider appropriate in the circumstances".
Personal information is defined as meaning information "about" an identifiable
individual. Section 4.3 of Schedule 1 to the statute provides that the knowledge
and consent of the individual are required for the collection, use or disclosure
of personal information, "except where inappropriate". Section 7 (1) (b) and
7(2) (d) indicate that it will be appropriate to collect or use personal
information.... if it is reasonable to expect that the collection with the
knowledge or consent of the individual would compromise the availability or the
accuracy of the information and the collection is reasonable for purposes
relating to investigating a breach of an agreement ...[86]
Quite apart from the jurisdictional question - and the question
when the contents of communications to or by an individual are to be considered
to be information "about" him or her - I would not be prepared to find on the
evidence that Nasir was not entitled to collect the information pursuant to
section 7 (1) (b), and that VDG was not entitled to use it pursuant to section 7
(2) (d). According to his evidence, Nasir had considered his employment to be
protected by an agreement ensuring Mr Albrecht's continued position as President
of RealTime 7. He considered that agreement to have been breached by the
dismissal of Albrecht, and his purpose in obtaining access to Mr Rajput's
computer was to protect himself by investigating "what the Kulkarnis were up
to."
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