Ontario court says PIPEDA does not apply to LawPro

29 Sep

On August 28th, the Ontario Superior Court of Justice held that LawPro (who insures Ontario lawyers) was entitled to report various allegations made against an insured to the Law Society of Upper Canada.

LawPro made the report after the insured was sued and before it denied him coverage.  The Court held that LawPro wrongly denied coverage but dismissed the insured’s breach of confidence and privacy claim.

The Court held that LawPro did not breach PIPEDA because it is not engaged in commercial activity. It explained:

Counsel for LawPro submits, correctly in my view, that the providing of mandatory professional liability insurance to the province’s lawyers is not a commercial activity within the meaning of section 4(1)(a) of PIPEDA. Although LawPro is designed to conduct itself in a financially viable manner, its principal shareholder is the Law Society – a regulatory body – and its mandate entails “a commitment to working with the bar in the public interest over the long term”. LawPro, Our Story: 15 Years of Making a Difference (Lawyers Professional Indemnity Company, 2010), online: http://www.practicepro.ca/LawPROmag/15Anniversary Booklet.pdf, at p. 4. That mandate takes LawPro outside of the type of activities to which PIPEDA applies.

The Court also held that LawPro acted properly in making the report notwithstanding the insured’s argument that his communications with LawPro were made to a solicitor in his and LawPro’s common interest and were therefore subject to solicitor-client privilege. The Court held that LawPro had a duty to report that superseded solicitor-client privilege.

(Is there really such a duty? I question whether the decision merely suggests that LawPro was entitled, as a matter of public interest, to report.)

Cusack v The Lawyers’ Professional Indemnity Co., 2013 ONSC 5511 (CanLII).

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2 Responses to “Ontario court says PIPEDA does not apply to LawPro”

  1. Dan Pinnington September 30, 2013 at 7:25 pm #

    Hi Dan

    On behalf of LAWPRO, I would like provide an answer to the question you pose at the end of your post. Yes, there really is such a duty. All Ontario lawyers are bound by a positive duty to report to the Law Society information relating to any of the circumstances described under Rules 6.01(3) and 6.07(1) of the Rules of Professional Conduct (http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147489381). More particularly, these circumstances include the following:
    • Under 6.01(3):
    (a) the misappropriation or misapplication of trust monies,
    (b) the abandonment of a law or legal services practice,
    (c) participation in serious criminal activity related to a licensee’s practice,
    (d) the mental instability of a licensee of such a serious nature that the licensee’s clients are likely to be severely prejudiced, and
    (e) any other situation where a licensee’s clients are likely to be severely prejudice
    • Under 6.07 (1) A lawyer shall assist in preventing the unauthorized practice of law and the unauthorized provision of legal services.

    Rules 6.01(3) and 6.07(1) also apply to the lawyers employed by LAWPRO.

    And just to clarify with respect to statement made by the title of your post, in terms of the privacy issue, the Court was only considering the primary program operated by LAWPRO for the Law Society. PIPEDA does apply with respect to LAWPRO operations unrelated to the primary program. See our Privacy Code for more details (http://lawpro.ca/Privacy/default.asp#privacy).

    Dan Pinnington
    Vice President Claims Prevention and Stakeholder Relations
    Lawyers’ Professional Indemnity Company (LAWPRO®)

  2. Dan Michaluk September 30, 2013 at 7:34 pm #

    Thank you Dan!

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