Interview with Norman Groot
May 2003
Terry McQuay, Nymity's President, recently met with Norman
Groot, a lawyer at McCague Peacock Borlack McInnis & Lloyd
LLP, and author of "Canadian Law & Privacy Investigations"
to discuss how PIPEDA will impact private investigators.
Nymity: PIPEDA states that an organization can disclose personal information without consent to an "investigative body". What is an "Investigative body"?
Groot: An "investigative body" is any organization listed in the regulations of PIPEDA. The designation is obtained by making an application to Industry Canada. Industry Canada will only accept submissions by organizations that demonstrate that they require the "investigative body" status to maintain their method of operating and prove that it is in the public interest. PIPEDA only allows disclosure of an individual's personal information without consent if it pertains to the investigation of a breach of contract or a contravention of a law.
Nymity: As a lawyer, you represent organizations that
wish to achieve "investigative body" status under PIPEDA .
Who should apply to industry Canada for that status?
Groot: Any organization that conducts investigations and seeks to have other organizations disclose personal information of individuals to it on a without consent basis, or in turn disclose without consent of the individual personal information it collects to another organization. So, for example, private investigators, insurance adjusters, forensic accountants, forensic engineers, professional discipline bodies and security companies should inquire to Industry Canada to determine whether they require the "investigative body" status to maintain their current information collection and disclosure practices. Other organizations who have in-house investigators should also address this issue.
Nymity: On March 20th, George Radwanski, Privacy Commissioner of Canada, spoke about PIPEDA to the general meeting of the Privacy Investigators Association of British Columbia and he stated his belief that private investigators do not require the special status of "investigative body". Do you Agree? ( www.privcom.gc.ca/speech/2003/02_05_a_030320_e.asp )
Groot: Of course I respect the opinions of the federal
Privacy Commissioner. However, there are differing opinions
on this issue. For example, Industry Canada's position on
these issues as released in the Canada Gazette, Volume 124,
Number 41, on October 7, 2000 was as follows: "PIPEDA establishes
rules to govern the collection, use and disclosure of personal
information by organizations in the course of commercial activity.
The legislation requires an organization which discloses personal
information to obtain the individual's consent in most circumstances....Increasingly,
many fraud investigations are initially launched by private
sector organizations by way of an independent, non-governmental
investigative body...Paragraph 7(3)(d) allows an organization
to disclose personal information, without the consent of the
individual, to the appropriate private sector investigative
body in order to conduct the preliminary investigation. The
disclosure is circumscribed as it must be a reasonable disclosure
related to the breaches of agreements or contraventions of
the law...Paragraph 7(3)(h.2) allows an investigative body
to disclose personal information back to the client organization
on whose behalf it is conducting the investigation. Paragraph
7(3)(h.2) completes the exception provided in paragraph 7(1)(b)
for collection without consent...Collection alone would be
of limited use.unless the information could be disclosed to
the parties that need the information.Without paragraph (7)(3)(h.2),
the information flow could only go in one direction - from
the organization to the investigative body. The investigative
body would be unable to disclose the results of its investigation
back to the client organization without consent...There are
no alternatives to deal with the collection, use and disclosure
of this information without consent." It is also worth noting
that the Privacy Commissioner is an ombudsman, and that Industry
Canada sets policy.
Nymity: You have done considerable litigation work
based on invasion of privacy. What kind of litigation do you
expect from PIPEDA?
Groot: With respect to public sector privacy legislation
and other information protection legislation such as consumer
credit reporting legislation, I have seen tort actions based
on negligence, invasion of privacy and breach of confidentiality.
Similar actions may be commenced against private sector companies
as a result of violations of PIPEDA.
Nymity: You indicated that civil litigation will be
the "big stick" for PIPEDA. Why?
Groot: Civil litigation is always a concern of any
organization. Even if a claim is frivolous, the costs of adjusting
and litigating it are eventually reflected in increased insurance
premiums. And, of course, it may result in unwanted publicity.
Nymity: How does PIPEDA impact private investigators
that work for commercial customers such as insurance and banking
organizations?
Groot : Assuming private investigators are listed by
Industry Canada in the regulation of PIPEDA, it will not affect
to a great extent the way they carry on business.
Nymity: In your book, "Canadian Law & Privacy
Investigations"[Norman Groot] (Irwin Law Inc. - www.irwinlaw.com),
you provide information that would help organizations understand
privacy law. Please explain.
Groot: The book deals with regulatory, criminal, tort
and evidence issues pertaining to issues of invasion of privacy
specifically and privacy issues generally in great detail.
Norman Groot, LLB, CFE
McCague Peacock Borlack McInnis & Lloyd LLP
Barristers and Solicitors
Phone (416) 860-0001 Fax (416) 860-0003
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