Our second issue is whether an individual can make a request under PIPEDA for access to their personal information at the same time they are suing the insurance company in court. This issue may be unique to property and casualty insurers, which deal not only with their own customers but also with non-customers. We refer to these as third parties. The third parties will say that they have suffered damages or injuries because of the acts of the insurer's customer. The relationship that exists between the third party and the insurer is often adversarial.
The experience of our members is that these access requests are not being made for the PIPEDA-stated purpose of correcting inaccuracies in the information, but rather so that the individual can use information in the insurance claims file to assist them in their court action against the insurer. This should not be allowed to continue. It is prejudicing the ability of insurers to fulfill their legal obligation to defend their customers in any lawsuit.
We recommend that PIPEDA be revised so that the rules of civil procedure that regulate access to information during lawsuits take precedence over PIPEDA when a legal action has been started.
Our third issue also reflects the unique nature of the P and C insurance business in which insurers have to investigate the events of an accident. This includes collecting statements from people who witnessed the accident or who have information about the accident. A witness statement will typically contain information about the witness, the witness's observations of the incident, and information about another individual who was involved in the incident. This other individual is the subject of the statement. A witness statement may as easily confirm and verify the claimant's version of the events as it might cast doubts about the incident. It is to everyone's benefit if all of the relevant facts and information are gathered by the insurer as quickly and accurately as possible.
Witness statements are not specifically addressed in PIPEDA, and this results in uncertainty about their treatment under that law. The first issue is whose personal information a witness statement contains. In our view, the observations of the witness are the witness's personal information, and therefore the witness may freely give a statement to the insurer.
It has been suggested that an insurer should, before collecting a witness statement, obtain the consent of the person who is the subject of the statement. This suggestion defies common sense. It would effectively allow the subject of the witness statement to prevent the witness from reporting what they saw or heard.
We recommend that PIPEDA be revised to clarify that the personal information expressed by a witness is the witness's personal information. PIPEDA should also provide that an organization may, during the course of investigating and settling contractual issues or claims for loss or damages, collect, use and disclose a witness statement without the subject's knowledge or consent.
This morning we have briefly summarized three of our issues and proposed solutions. We would be pleased to answer any questions that you may have on these or any of the other issues in our written submission.
Thank you.