Is Private Investigation a Commercial Activity?

      Sep 07, 2010

      "The Federal Court of Canada recently released an important decision on the parameters of commercial activity under the Personal Information Protection and Electronic Documents Act (PIPEDA):  State Farm v Privacy Commissioner," attorney David Canton wrote on the website of the London Free Press. PIPEDA defined commercial activity as "any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering, or leasing of donor, membership, or other fundraising lists."

      In State Farm v Privacy Commissioner, the insurance company, according to the article, "questioned the privacy commissioner's jurisdiction to investigate a refusal to provide access to personal information and her power to compel the production of documents during the course of an investigation."

      This was because State Farm had hired "a private investigator on behalf of an insured person who had been sued by a motor-vehicle accident plaintiff. The private investigator conducted video surveillance on the plaintiff. The plaintiff sought access to the surveillance footage under the act."

      The court ruled it would not be commercial activity for a defendant to personally collect evidence for the defense of her tort claim because there is no "commercial character" associated with that activity. The court concluded, therefore, "that because the primary characterization of the activity is not commercial, using a third party (such as an insurer, a law firm, or a private investigator) to carry it out does not render it commercial."

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