Lee Akazaki of Gilbertson Davis has written a fascinating article in the most recent Advocates’ Quarterly (vol 50) about a privacy-related development that he argues is interfering with the just and expeditious handling of no-fault motor vehicle claims in Ontario.
Mr. Akazaki explains that plaintiff counsel are using privacy claims to frustrate the mandatory independent medical examinations required by section 44 of the Statutory Accident Benefit Schedule:
In about 2016, assessors began to receive cryptic letters from the clients of lawyers retained to advance injury claims. The letters invariably followed a template containing a client’s name, the lawyer’s office address, and the client’s signature. Written in “legalese,” the letters demanded that s. 44 assessors account directly to the claimant for various documents and procedures in the IME process. The letters stated the recipients were not to disclose the requests to insurers or other parties, thus leaving assessors worried that reprisals would follow if they alerted insures or their agents. They also demanded responses within 30 days, failing which the assessor was liable to face a complaint to the Office of the Privacy Commissioner (OPC) under the Canadian federal Personal Information Protection and Electronic Documents Act (PIPEDA). The letters exploited ostensible conflicts among health care standards, privacy litigation and SABS.
This is shocking, especially given PIPEDA does not apply. On this point I agree with Mr. Akazaki, though my reasoning differs. This is entirely analogous to the State Farm case, in which the Federal Court held that the gathering of evidence to resolve a civil dispute in a province was not subject to PIPEDA because it is not, in its essence “commercial activity.” It is unlike Wyndowe, an earlier case in which the Federal Court held that an independent medical examination under a disability insurance contract was subject to PIPEDA.
Mr. Akazaki argues that Wyndowe is distinct because the SABS regime (unlike typical contractual examination rights under disability insurance contracts) treats the (provisional) denial of benefits as a condition precedent to an examination. Okay, but I think the point of distinction is likely more fundamental. It strikes me – and I am not an insurance lawyer! – that the SABS regime is a public regime for resolving civil disputes in the province and is, in part at least, a means of keeping litigation out of court. It’s the public character of the SABS dispute resolution regime that ought to provide it with a form of immunization from PIPEDA. It’s what makes the “primary characterization of the activity” (to use the State Farm test words) something other than commercial.
And a word to the wise, never assume that a privacy statute applies. Application issues abound, and litigating them is where all the fun is at!