Court procedures provided a more appropriate means to address access issues in ongoing litigation between complainant and retailer

Declined to Investigate Case Summary #2013-001

September 11, 2013


Lessons Learned

  • Where a court’s procedures provide a more appropriate means for the complainant to address access issues related to ongoing litigation also raised through a complaint to our Office, our Office can decline to investigate such a complaint pursuant to paragraph 12(1)(b) of PIPEDA.

Complaint

An individual and a retailer were involved in ongoing litigation in small claims court. The individual sought access to her personal information, which she stated was related to this litigation and was necessary to support her litigation. According to the complainant, the retailer had not provided full disclosure in the course of the litigation, which was now set down for trial. The request was refused by the retailer on the basis of litigation privilege and because the retailer had previously provided a number of documents to the complainant in the course of the ongoing litigation. 

As a result of this refusal, the complainant filed a complaint with our Office on May 13, 2013 stating that the retailer had withheld access to her personal information, in contravention of subsection 8(3) of PIPEDA and Principle 4.9 of Schedule 1 of PIPEDA.

Declined to Investigate

A ruling of a provincial court judge hearing the small claims action held that the complainant could ask about other documents and persuade the trial judge that further disclosure was required during cross-examination. Our Office’s review of the court’s procedures available to the complainant with respect to witnesses and the trial showed that the procedures did provide her with appropriate means of addressing the access issues described in her complaint.

Based on this analysis, our Office declined to investigate this access complaint pursuant to paragraph 12(1)(b) of PIPEDA, which states “The Commissioner shall conduct an investigation in respect of a complaint unless the Commissioner is of the opinion that 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.” This decision was informed by: (i) the particular circumstances of this complaint; (ii) the desirability of avoiding any conflict with provincial rules and procedures regarding the conduct of court proceedings in a province; and (iii) the need to ensure the judicious use of public resources.

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