At Kain & Ball Professional Corporation, we are committed to protecting the privacy of our clients. As a law firm, we are required to comply with the Law Society of Upper Canada’s Rules of Professional Conduct. The Rules state that lawyers are bound by a professional obligation to keep client information in strict confidence. The scope of this obligation is broad; it is owed to every client and continues for an indefinite period following the cessation of the lawyer-client relationship.
Personal Information Protection and Electronic Databases Act
Commencing on January 1, 2004, all businesses engaged in commercial activity (including law firms) became bound by the Personal Information Protection and Electronic Databases Act(“PIPEDA”, “the Act”), the purpose of which is to protect the personal information of clients.
A client’s right to his or her personal information is broader under the Act than under the Rules of Professional Conduct in the following ways:
- Law firms are required to obtain the consent of the client to collect, use or disclose his or her personal information to third parties.
- While law firms are required to protect client information, there is a corresponding right on the part of the client to control the manner in which such information is used and to generally have access to such information.
- The Act requires that law firms have security measures in place to prevent client privacy from being compromised. The extent of such safeguards corresponds with the sensitivity of the information; highly sensitive information will warrant more significant safety measures.
What is Personal Information and Why Do We Collect It?
The Act defines personal information as “information about an identifiable individual.” We collect the personal information of our clients for the narrow purpose of providing legal advice and representation.
Where practicable, Kain & Ball Professional Corporation will endeavour to seek our clients’ direct consent to collect, use or disclose their personal information prior to, or at the time of collection. We will attempt to seek such consent in writing. However, there may be some instances in which we may obtain verbal consent (for example, where written consent is not available) and other instances where consent is implied between the parties. The type of consent we will seek is dependent on the circumstance and sensitivity of the information.
Please be aware that while we prefer to collect client information directly, there may be circumstances that warrant the collection of such information from a third party (such as through a credit check). In such cases, we will always obtain our clients’ consent prior to acting.
Subject to certain legal and contractual restrictions, clients are permitted to withdraw their consent as they wish.
Exceptions to Consent
Pursuant to section 7(1)(b) of the Act, we may collect personal information without consent where:
- it is reasonable to expect that collection with the knowledge and consent of the individual would compromise the availability or accuracy of the information;
- the collection is reasonable for purposes related to a breach of an agreement or a contravention of the laws (both common law and statute-based) of Canada or any province.
We may also use any information collected pursuant to this section without the consent of the respective party.
How is Client Information Used?
Client information may be used to maintain client lists and to perform conflict checks, as well as in the course of legal representation. We may also use client information internally within the firm to promote professional development among our firm’s members (for example, through the use of precedents). We will always inform our clients of the purpose of the collection and use of their personal information.
All client information is stored in accordance with the requirements of the Act.
Disclosure of Client Information
Kain & Ball Professional Corporation will disclose client information to third parties only in accordance with the law. Disclosure is permitted pursuant to section 7(3) of the Act, including in the following circumstances:
- Where the client has consented to such disclosure;
- Where we are required by law to disclose, such as to comply with a subpoena of the court;
- Where permitted by law to disclose, such as to prevent serious bodily or psychological harm from occurring to an identifiable person or group;
- Where it is necessary to establish or collect legal fees;
- Where the legal services being provided require that we provide client information to a third party;
- If expert witnesses are retained on behalf of the client;
- Where the information is public knowledge.
Upon written request and subject to applicable fees, Kain & Ball Professional Corporation will provide clients with access to their personal information contained in their client files. Subject to certain exceptions, such access must be facilitated within 30 days of the request. We are required to verify the identity of any client making such a request before we will disclose any personal information.
Please be advised that clients may be refused access to their personal information in the following limited circumstances :
- where the source of the information is protected by solicitor-client privilege;
- where to do so would reveal confidential commercial information, and the client’s personal information cannot be severed;
- where to do so could reasonably be expected to threaten the life or security of another party and the client’s personal information cannot be severed;
- the information was collected under section 7(1)(b) of the Act;
- the information was collected in the course of a formal dispute resolution process;
- the information was created for the purpose of making a disclosure under the Public Servants Disclosure Protection Act or in the course of an investigation into a disclosure under that Act.
Please be advised that where the client’s personal information is co-mingled with the personal information of other persons and cannot be severed, we cannot provide access to the information.
If we refuse a client’s request for access, we will explain the reason for the refusal in writing.
Security Measures and Safeguards
Kain & Ball Professional Corporation has implemented the following measures to safeguard client information in the possession of the firm. These measures include:
- Physical measures and premises security;
- Network security; including network passwords and security software.
This policy is reviewed regularly and may be amended at any time.
As is customary for commercial websites, we reserve the right to monitor site usage patterns.
Note that there are three limited exceptions to this rule. A lawyer is permitted to disclose a client’s confidential information where there is an imminent risk to an identifiable person(s) and to report would prevent death or serious bodily or psychological harm; in order to defend against allegations of criminal, civil or professional misconduct; or to establish or collect legal fees. Note that in all three exceptions a lawyer is permitted to disclose only as much information as is necessary to fulfill the purpose.
Please note that the term “client” refers to both existing and potential clients.
Levine, Sara A. Law Firm Compliance: Key Privacy Considerations for Lawyers and Law Firms in Ontario: 2004, at 6.
Ibid. at 7.
In responding to requests for access, we may also be subject to sections 9(2.1) and 9(2.4) of PIPEDA.