|View the Privacy Commissioner of Canada's Fact Sheet|
for an overview of Canadian Privacy Legislation.
Understanding employee privacy rights during corporate surveillance will help you avoid breach of privacy accusations and litigation.
Express or Implied Consent?
The basis of PIPEDA is built on the idea of “consent.” Whether express or implied, consent must always be present in respect of any collection, use or disclosure of personal information, though there are some exceptions.
Express consent is difficult to obtain in a litigation context and may be an exception to consent laws. Express consent should still be obtained when seeking disclosure of personal information from a non-party to litigation.
Implied consent is the most prevalent form of consent, especially in the litigation context. Most organizations rely on this type of consent for collection, use and disclosure of personal information in a wide range of litigation activities, including settlement negotiations. Implied consent is limited to what a reasonable person would deem appropriate and does not authorize unlimited or inappropriate collection, use or disclosure of an individual’s personal information.
Exceptions to Consent
Section 7 of PIPEDA is relevant in litigation as it applies to exceptions from implied and express consent. The Privacy Commission of Canada lists the following as relevant sections of PIPEDA in a litigation context:
- Collection without consent is permitted under paragraph 7(1)(b) where it is reasonable to expect that:
- the collection with the knowledge and consent of the individual would compromise the availability or accuracy of the information; and
- the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province, including the common law.
- Use without consent is permitted under paragraph 7(2)(d) where the information was collected under paragraph 7(1)(b) above; and
- Disclosure without consent is permitted by one of the exceptions listed under subsection 7(3), including the following:
- for the purpose of collecting a debt owed by the individual,
- where required to comply with a subpoena, warrant or order, or to comply with rules of court relating to the production of records, or,
- when made to an investigative body on reasonable grounds to believe that the personal information relates to a breach of an agreement or a contravention of the laws of Canada or of a province or a foreign jurisdiction.
The Renwick Group has experience working with many different types of businesses and organizations providing skip-tracing, fraud investigations, WSIB support, legal team assistance, evidence gathering, employee background checks, and more. We also work with individuals who need help with personal matters. Call us at 1 (888) 722-9807 or visit our website for information.