Claim for Breach of PIPEDA related to Insurance Assessment Cannot Proceed in Superior Court of Justice

By Emma Gardiner

A recent decision of Ontario’s Superior Court of Justice which struck the pleadings for an action brought by an accident benefits claimant provides some important insight into the Court’s jurisdiction with respect to claims for breach of the Personal Information Protection and Electronic Documents Act (“PIPEDA”).

I. Background

The plaintiff was a minor who was injured in an automobile accident, when the vehicle she was a passenger in was struck by a vehicle that fled the scene. She was insured under a policy provided by her mother’s accident benefits insurer (the “Insurer”). The plaintiff brought three separate proceedings in relation to her injuries as a result of the automobile accident.

  • a dispute with respect to her entitlement to accident benefits, which was proceeding before the License Appeal Tribunal (“LAT”)
  • a tort claim brought against the unidentified driver who fled the scene and the Insurer, on the basis of unidentified driver liability insurance coverage
  • an action challenging the Insurer’s administration of her claims for accident benefits under SABS (the “Action”).

The Action named as defendants the Insurer, several employees of the Insurer, as well as the assessment company and individual assessors involved in providing assessments under sections 44 and 45 of the Statutory Accident Benefits Schedule (“SABS”). Among other claims, the plaintiff pleaded that the Insurer, assessment company and individual assessors engaged in inappropriate collection, use, and disclosure of her personal information in the assessment process, contrary to PIPEDA.

The plaintiff also filed a complaint with the Office of the Privacy Commissioner of Canada (the “OPC”), alleging breaches of her rights under PIPEDA. However, the OPC declined to investigate her complaint. Although not referenced in the Court’s decision, it is likely that the OPC declined to investigate the complaint pursuant to section 12(1)(b) of PIPEDA, with states:

12 (1) The Commissioner shall conduct an investigation in respect of a complaint, unless the Commissioner is of the opinion that…

(b) the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under the laws of Canada, other than this Part, or the laws of a province

The OPC likely concluded that the plaintiff’s concerns with respect to the assessment process were more appropriately addressed, either initially or completely, in her application before the LAT.

II. Analysis of PIPEDA Claims

Under Rule 21.01(1)(b), a party can move to strike out a pleading on the ground that it discloses “no reasonable cause of action.” To establish that a pleading does not disclose a reasonable cause of action, the defendant must show that it is “plain, obvious, and beyond doubt that the plaintiff cannot succeed in the claim.”

The Court found that the plaintiff could not succeed in a claim for a breach of PIPEDA in the Ontario Superior Court of Justice. Under PIPEDA, individuals can file a complaint to the Office Privacy Commissioner of Canada (“OPC”) with respect to a breach of their privacy rights under PIPEDA. The OPC may choose to investigate the complaint and may choose to issue a report. Where the OPC issues a report, the individual may bring an application for relief in Federal Court, and the Federal Court, may, among other remedies, order damages.

The Court noted that in this case, the plaintiff filed a complaint to the OPC, but the OPC declined to investigate. Accordingly, the court concluded that any remedy that plaintiff may have with respect to a breach of PIPEDA was a matter for the Federal Court, and the plaintiff had no reasonable cause of action in Superior Court.

Conclusion

This case confirms that the process provided for under PIPEDA is the only forum available to address breaches of privacy rights provided for under PIPEDA. There is no free-standing cause of action for a breach of PIPEDA and privacy concerns related to insurance assessments can only be dealt with at the LAT if the OPC declines to investigate.

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