THE FACTS OF THE CASE¹

The insured was the owner of a building. In 2010, the sewer backed up in the building’s basement for the first time. The insurer paid for the repairs while the insured covered the cost of materials. The repairs included replacing the drain and the submersible pump. In 2013, the sewer backed up again. The insured made a second claim to his insurer. According to the new contractor, the work following the first claim had been poorly executed. The insured asked the insurer to pay for replacing the drain. The insurer refused, since in their opinion, the 2010 repairs met the construction standards in force at the time.

In 2014, the insured asked the insurer for access to both his claims files. The insurer refused access to the documents, arguing that:  ​

1) their disclosure could likely affect a legal proceeding;

2) certain documents did not constitute personal information.

The insured then turned to the Commission d’accès à l’information du Québec (CAI).

TWO QUESTIONS

1. Did the documents in dispute constitute personal information?

Section 27 of the Act respecting the protection of personal information in the private sector (ARPPIPS) states that when an enterprise holds a file on a person, it must, at the request of the person concerned, confirm the existence of the file and communicate to the person any personal information concerning him.

After analysis, the CAI concluded that “under the terms of the ARPPIPS, the information contained in the claims files are part of a file on the applicant. Most of this information enables his identification and reveals facts about him, in particular his contact information, the fact that he had had two losses and the extent of the damages, his claims, his disagreement with the company regarding the settlement of the second claim, pictures of where he lives, etc.”

The CAI “considers that the majority of the documents in dispute in this file constitute personal information, since they allow the insured to be identified and reveal information about him.” The CAI therefore granted access to the following documents:

• ​property damages observed;
• ​probable causes of the losses;
• ​work required;
• ​estimates;
• ​e-mails;
• ​photos taken at the applicant’s home;
• ​blueprints of his property;
• ​invoices;
• ​payment recommendations;
• ​correspondence;
• ​notes in the file;
• ​the independent claims adjuster’s report.

However, the CAI concluded that certain documents were not covered by the right to access under section 27 of the ARPPIPS and that the insurer did not have to provide them to the insured, namely:

• the invoices, fees and payments the insurer made to the evaluators and claims adjusters;
• the corresponding time sheets;
• references to these matters in the file notes.

2. Is information protected under s. 39 (2) of the ARPPIPS?

Under section 39 (2) of the ARPPIPS, an enterprise is allowed to refuse to communicate the personal information requested where disclosure of the information would be likely to affect judicial proceedings in which either person has an interest.

The case law clarifies that it is not necessary to have already initiated proceedings to benefit from this exception. Strong, clear factual evidence must, however, be provided to show that judicial proceedings are about to be initiated.

Evidence showing that proceedings will begin very soon generally include:

• a formal notice;
• the involvement of a lawyer;
• manifest intent: the applicant for access has unequivocally voiced his intention to, for instance, assert his rights, go as far as need be, or put the matter in the hands of a lawyer.

When the insured applied for access to his file, the CAI did not receive sufficient proof to be able to rule that judicial proceedings were about to be initiated. The insured had not shown his intention to initiate proceedings and had not sent a formal notice to the insurer.

Furthermore, the CAI mentioned that “simply expressing one’s disagreement with the insurer, arguing with them and wanting to understand the grounds for their decision is not sufficient to show that judicial proceedings are about to be initiated. Asking your insurer to assume certain costs because you believe that the insurer was responsible for the situation does not necessarily indicate that judicial proceedings are about to be initiated.” The CAI concluded that the insurer could not invoke this exception in order to refuse access to the documents.

1. M.V. v. RBC Assurances​, 2016 QCCAI 178.

By M^e Jannick Desforges, Director, Institutional Affairs and Professional Practice Compliance at the ChAD