Privacy Commissioner orders law firm Gowlings to respond to personal information access request

On December 12, 2016 the Alberta Office of the Information and Privacy Commissioner (OIPC) issued a decision ordering defendant Gowlings to respond to the plaintiff Carbone's access request for records containing, and relating to, her credit and financial personal information.

Click here to read the Decision #003172 on the OIPC website

The decision follows Gowlings' unreasonable refusal to provide the personal information records in response to the plaintiff's access request she made pursuant to the Personal Information Protection Act (PIPA). The plaintiff made the access request after she learned in the fall of 2015 that Gowlings lawyers Taryn Burnett and Megan McMahon unlawfully obtained her credit report in 2013 and violated her privacy.

In Gowlings' attempt to prevent the plaintiff from accessing her personal information, Gowlings made a baseless application to the OIPC seeking authorization to disregard the plaintiff's access request. In usual fashion, Gowlings' application contained a variety of falsehoods about events and their status, fabrications about the plaintiff, and failed to provide any evidence.

In largely denying Gowlings' application and ordering it to respond to the access request for records containing, and relating to, the plaintiff's credit and financial information, Privacy Commissioner Jill Clayton's decision included these findings:

[8] The Respondent says that her May 11, 2016 request to the Organization [Gowlings] followed from a conversation with Service Alberta about the Organization’s having obtained the Respondent’s credit report. The Respondent says that she became aware that the Organization obtained her credit report when she saw that a “hard” credit check by the Organization appeared in a credit report she obtained in the fall of 2015. She says that a “hard” credit inquiry negatively impacts a credit score. The Respondent further says that Service Alberta informed her that the Organization did not have the authority to obtain the credit report in the circumstances, and informed her of the PIPA process for requesting her personal information. 

[9] The Respondent then says that, on June 6, 2016, she sent correspondence to the Organization with a request for a narrowed subset of records relating to her personal credit and financial information. The Respondent explains that she requested this narrowed subset of records sooner than the original request for all personal information, with a view to first obtaining the records related to the alleged improper credit check and then to assess whether further personal information records would be required. The Respondent maintains that the credit report is not part of her lawsuit against the Organization at this point. The evidence provided by the Respondent is that the Organization pulled the credit report for a security for costs application.  

[10] In her submission, the Respondent also cites two reports from the Privacy Commissioner of Canada in which two law firms were found to have contravened PIPEDA when they obtained credit reports of the complainants, without their knowledge and consent. The Respondent further cites a Federal Court case that makes a similar finding. 

[15] ...The Respondent has made an access request under PIPA only once. There is no evidence before me that the Respondent has made this same access request more than once. Therefore, I find that the access request is not repetitious. The access request is also not systematic in nature.

[16] I find that the Organization has not met its burden of proving that the Respondent’s access request is repetitious or systematic in nature. Therefore, that part of section 37(a) is not met.

[18] As I have found that the request is not repetitious or systematic in nature, it is not necessary to decide whether the request would unreasonably interfere with the Organization’s operations. However, if I were to decide this, I would find that it did not apply because the Organization did not argue it or provide any evidence. 

[19] I find that the Organization has not met its burden of proving that the Respondent’s access request would unreasonably interfere with the operations of the Organization. Therefore, that part of section 37(a) is not met.

[24] There is nothing on the record in the Organization’s application to establish that the Respondent had an ulterior improper motive for making the access request. The Respondent does not have to prove that the request was for a legitimate purpose. However, if the Respondent did have that burden, I would find that the Respondent has adequately explained why she is seeking the information: she intends to bring a PIPA complaint.

[25] I find that the Organization has not met its burden of proving that the Respondent’s access request amounts to an abuse. Therefore, that part of section 37(a) is not met.

[31] There is nothing on the record in the Organization’s application to establish that the Respondent’s access request is vexatious. Based on the Court’s decision in Bonsma, there is no evidence of an ulterior improper motive for making the access request.

[32] I find that the Organization has not met its burden of proving that the Respondent’s access request is vexatious. Therefore, that part of section 37(b) is not met.

[39] …[T]he Respondent’s narrowed access request for her credit and financial information is another matter. That request clearly meets the definition of personal information because it is for information “about” the Respondent. Therefore, the Respondent’s narrowed access cannot be said to lack merit and is not frivolous. In coming to this conclusion, l am also mindful that the purpose of PIPA is to protect personal information.

[40] I find that the Organization has not met its burden of proving that the Respondent’s narrowed access request for her credit and financial information is frivolous. Section 37(b) is not met for that access request.

[42] …[T]he Organization’s application to disregard the Respondent’s narrowed access request for her credit and financial information is denied. The Organization must now respond to that narrowed access request according to PIPA. 

The plaintiff's next step is to review the records Gowlings needs to produce to determine the full extent of Gowlings' misuse of her personal information. The plaintiff will then submit to the OIPC a formal PIPA complaint about Gowlings' unlawful credit pull in violation of PIPA, along with her findings of any further breach upon review of the records.

Details of the unlawful credit check and the plaintiff's PIPA request were reported in these earlier blog posts: February 2016, June 2016, November 2016.

As reported throughout this blog, the plaintiff is also prosecuting defendants Megan McMahon and Taryn Burnett in a lawyer abuse lawsuit with amendments to come arising from their harassment, defamation, fraud, misrepresentations to the courts, and other matters of serious misconduct they inflicted on the plaintiff while they were opposing defence lawyers for Dr. Peter Whidden in the underlying medical malpractice lawsuit. The next court proceeding in the lawyer abuse lawsuit is scheduled to be heard in February 2017.

Update January 12, 2017: Consistent with Gowlings' ongoing delays with proceedings, Gowlings has informed the plaintiff it will delay its ordered access response to the plaintiff beyond the January 12 deadline by up to another 30 days.

New delay in lawsuit against lawyers Megan McMahon and Taryn Burnett pushes delays to crisis level

The Carbone case against defendant lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings has been plagued with delays since 2013 by the defendant lawyers. Now a new delay by the court pushes the hearing of the scheduled applications to next year.

On November 24, 2016, the court sent a letter to the parties, advising that Justice D.B. Nixon is no longer available for the case management meeting scheduled for December 15, 2016. The letter offered his next availability on February 21, 2017. The news came just one day before the plaintiff's brief for the scheduled applications for recusal of the judge, amendments and striking was to be filed.

The ongoing delays have unreasonably prolonged the plaintiff's wait for justice in these serious matters concerning the defendant lawyers' malicious harassment, defamation, fraud and misrepresentations to the courts in the underlying medical malpractice matter.

The plaintiff is entitled to a timely and fair hearing of her matters. The delays also threaten her access to justice.

With the hearing being rescheduled to February 21, 2017, the plaintiff's brief will be posted on this blog in early February 2017.

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In related matters, the plaintiff continues to deal with the privacy breach matter and law society complaints, all still in progress.

The privacy breach matter, concerning Taryn Burnett (who ironically also practices privacy law) and Megan McMahon unlawfully obtaining the plaintiff's credit report, is before the Office of the Privacy Commissioner (OIPC), which has its own delays.

On August 4, 2016, the plaintiff/complainant filed a formal response with evidence with the OIPC to oppose Gowlings' OIPC application which sought to disregard the plaintiff/complainant's PIPA request to access her personal information related to the credit and financial information wrongfully in Gowlings' possession.

Once the plaintiff/complainant obtains access to her personal information and has full details of the extent of the lawyers' and Gowlings' misuse of her credit and financial information, she will proceed to the next stage with the prescribed OIPC privacy breach complaint process for resolution to the following issues, as stated in her OIPC August 4 submission:

1. The privacy breach concerning Megan McMahon and Taryn Burnett’s unlawful
obtaining of [the complainant's] credit report and financial information and misuse of it. 

2. Gowlings' failure to file the required privacy breach notification report upon learning
of Ms. McMahon's and Ms. Burnett's unlawful obtaining and usage of [the complainant's] credit report. 

3. Suggestion for recommendations to be made for Gowlings to implement and enforce
privacy standards that will protect opposing parties from unauthorized access to credit
reports by its lawyers.

Updates in these matters will be reported in this blog.

Lawsuit against lawyers Megan McMahon, Taryn Burnett and Gowlings to proceed after lengthy delays

Update November 25, 2016: Hearing delayed again to February 2017

After lengthy delays in the case Carbone v. Megan McMahon and Gowlings, the case is scheduled to proceed with a hearing at the Court of Queen's Bench on December 15, 2016 at 10:00am.

In this case the defendants, lawyers Megan McMahon, Taryn Burnett and their law firm Gowlings, face allegations of their malicious harassment, defamation and defrauding of the plaintiff in the underlying medical malpractice case, among other egregious misconduct by the lawyers.

These are the court applications that will be heard at the scheduled hearing:

1) Plaintiff's application for recusal of the new case management judge

• Justice Earl C. Wilson was removed as case management judge in this case in January 2015 in the face of his undeniable bias, conflict of interest, and blatant judge shopping by the defendants for his assignment to the case, among other transgressions, amounting to judicial misconduct. Justice D.B. Nixon was subsequently appointed case management judge.   
• At a case management meeting in May 2015 before Justice Nixon, it was learned that Perry Mack, the lawyer for the defendants, is also Justice Nixon's personal lawyer in unrelated matters. It is a significant conflict of interest for a judge to preside over a case in which one of the parties is represented by his own personal lawyer. The circumstances warrant Justice Nixon's recusal as case management judge.

2) Defendants' application for striking

• Long after the plaintiff commenced her lawsuit with action nos. 1401-00821 and 1301-03943 against the defendants and made an application for amendments to add further allegations against them, the defendants filed an application  to strike the lawsuit in an attempt to prevent the further allegations damaging to them from being heard.
• Despite that the plaintiff's original application to amend to add further allegations has always been allowed to be heard since December 2013, and was filed long before the defendants filed an application to strike, defence counsel told Justice Nixon that they were somehow entitled to have their application to strike heard first, in their attempt to deprive the plaintiff of her right to have her important amendments heard. 
• Also concerning is that the applications for recusal and striking are being heard at the same time. The recusal application should be heard independently and dealt with first.

3) Plaintiff's application for amendments

• As of December 2016, the plaintiff's original application for amendments will have been in waiting for an astounding three years since December 2013, in large part due to the defendants' ongoing unreasonable delays. 
• The plaintiff's application for amendments also includes proposed amendments with further allegations against the defendants filed in February 2014, July 2014, December 2014 and January 2015. In addition, new proposed amendments will be filed with allegations arising from the defendant lawyers' unlawful obtaining of the plaintiff's credit report and other transgressions that have come to light over the past year. 

The plaintiff's brief for these applications, which will include the plaintiff's grounds for recusal and amendments, and further details of the defendant lawyers' misconduct, will be posted on this blog when available.

Defendant Gowlings refuses Plaintiff's PIPA request for personal information

Update December 2016: The Privacy Commissioner has ordered Gowlings to respond to the plaintiff's credit and financial personal information access request in a decision dated December 12, 2016.

Alberta's Personal Information Protection Act (PIPA) applies to private sector organizations for the protection of personal information and to provide a right of access to an individual’s own personal information. But law firm Gowlings doesn't want the plaintiff, who sued them for egregious misconduct, to exercise this legislated right to seek her personal information from Gowlings.

After receiving confirmation that Gowlings obtained the plaintiff's credit report without her consent or knowledge, the plaintiff made a request to Gowlings pursuant to PIPA for access to her personal information within Gowlings' possession.

The plaintiff made her initial PIPA request to Gowlings on May 11, 2016, with a narrowed request on June 6, 2016 for a subset of records relating specifically to her credit and financial information (improperly) in Gowlings' possession.

Gowlings' response to the plaintiff was required by June 27, 2016 pursuant to PIPA, but no response was received. On June 29, 2016 the plaintiff had still not received a response from Gowlings and she informed them of their failure to respond to her request within the required timeframe.

The privacy officer for Gowlings replied to the plaintiff, stating he sent a request on June 21, 2016 to the Office of the Information and Privacy Commissioner (OIPC), seeking authorization to ignore the plaintiff's PIPA request for her personal information. He claimed he inadvertently forgot to send the plaintiff a copy of his correspondence to them.

Also on June 29, the plaintiff sent correspondence to OIPC with concerns about Gowlings' failure to provide a response within the required timeframe, and Gowlings' further failure to provide the plaintiff with a copy of Gowlings' correspondence to OIPC. The plaintiff also advised that her full formal complaint to OIPC would follow. Below is the plaintiff's preliminary notice of complaint to OIPC.

Attn: Jill Clayton

Office of the Information and Privacy Commissioner

Via email to generalinfo@oipc.ab.ca

June 29, 2016

Dear Ms. Clayton:

This is a preliminary letter to advise you of my concerns with the improper manner in which Gowling WLG (“Gowlings”) has failed to respond to my request for my personal information in their possession within the 45 day requirement to respond, pursuant to the Personal Information Protection Act (PIPA). This is also further to Gowlings’ further failure to copy me on their correspondence they indicate they sent you on June 21, 2016 in which they seek authorization to disregard my PIPA request, which I only learned of today, June 29.

My further concerns with these issues and the inaccuracies in Gowlings’ June 21 correspondence to you will follow in my forthcoming OIPC review request with the prescribed form, however, given that Gowlings’ letter was sent to you more than a week ago without my knowledge, I felt it was necessary to contact you immediately.

Please also note that I spoke to Christina with your Office of the Information and Privacy Commissioner (OIPC) this morning and she searched for correspondence received from Gowlings and confirmed to me that to date no such correspondence has been received from Gowlings, so I am not sure of your status in receiving their correspondence and anticipate you will now be able to review my within correspondence concurrently.

PIPA Request Background

On May 11, 2016, by way of letter and email to Gowlings privacy officer Michael Herman (attached), I made a PIPA request for my personal records within Gowlings’ possession. This request followed my conversation with Service Alberta, administrator of PIPA, regarding Gowlings’ and, specifically, lawyers Megan L. McMahon and Taryn C. Burnett’s improper obtaining of my credit report which was done without my consent or knowledge. I became aware that Gowlings obtained my credit report when I saw that a “hard” credit check by them appeared in a credit report I obtained. Service Alberta advised me that Gowlings did not have authority to obtain my credit report in the circumstances and informed me of the PIPA process for requesting my personal information from Gowlings.  

On June 6, 2016 I sent email correspondence (attached) to Mr. Herman with a request for a narrowed subset of records in Gowlings’ possession relating to the personal credit and financial information Gowlings had (improperly) in their possession. I requested that this narrowed subset of records be sent to me sooner than the original request for all personal information, with a view to first obtaining the records directly related to the improper credit check and then assessing whether further personal information records would be required. Mr. Herman’s email reply dated June 6, 2016 (attached) confirms he received this narrowed records request.

Pursuant to the 45 day requirement for Gowlings to respond to my PIPA request, Gowlings’ response to me was due two days ago, on June 27, 2016. I sent an email to Mr. Herman confirming their failure to respond to my request within the required timeframe. Mr. Herman replied to my email, stating he sent a letter to OIPC, directly to you, dated June 21, 2016, and attached said correspondence. Mr. Herman claimed he “forgot” to send me a copy of the correspondence to you.

I note that Mr. Herman’s June 21 correspondence to you he “forgot” to send me is filled with incomplete and inaccurate statements, in addition to completely irrelevant matters, in support of his request for authorization to disregard my PIPA request for my personal information in Gowlings’ possession. The actual purpose of Gowlings’ request to disregard my PIPA request is to conceal evidence of their breach of PIPA, and other Alberta legislation, related to their unlawful obtaining of my credit report. This tactic is consistent with their ongoing unethical tactics toward me, some of which I outline below as background.  

I further note that Mr. Herman’s correspondence to you fails to make any mention of my narrowed preliminary PIPA request for records relating to my credit and financial information in Gowlings’ possession. At this time, this is the extent of my personal information I am seeking from Gowlings.

General Background

I am the plaintiff in a medical malpractice action against defendant Dr. Peter Whidden, who injured me and caused me to undergo multiple corrective surgeries. Megan McMahon is a sometimes defence lawyer for the defendant Dr. Peter Whidden. Taryn Burnett is a former lawyer for Dr. Whidden, who was removed from that role at approximately the same time as their improper obtaining of my credit report in April 2013. That medical malpractice action is still in progress within the channels of the Canadian court system.

Throughout the course of the medical malpractice action Ms. McMahon and Ms. Burnett engaged in ongoing egregious and malicious harassment, defamation, misrepresentation, fraud, and abuse of process, toward me, a self-represented person, to the point my doctor referred me to the emergency upon noting health complications. Ms. McMahon and Ms. Burnett also brought a variety of malicious and repetitive applications against me in abuse of process in their desperate attempts to avoid the merits of my action and conceal the truth, and inflict physical, emotional and financial harm on me. All of their malicious applications against me were properly dismissed by the court. Mr. Herman’s slanted and inaccurate account of these matters would have you believe otherwise.

Ms. McMahon and Ms. Burnett’s egregious tactics and misconduct and their resulting damages to me necessitated that I bring a lawsuit against them. This action is also in progress and I attach the related decision Carbone v McMahon, 2015 ABCA 263 for your review.

I initiated a Law Society of Alberta complaint against Ms. McMahon, in progress, and Ms. McMahon purported in her reply that she and her colleague somehow thought it appropriate to obtain my credit report, and without my knowledge or consent, because they made a court application in the medical malpractice action for security for costs in April 2013, which they in fact lost. The court properly dismissed their application for security for costs because it had no merit. Quite notably, they vexatiously made three separate applications for security for costs in 2013 and they were all properly dismissed by the court. I understand from Service Alberta that the provisions of PIPA do not provide for obtaining an opposing party’s credit report under such circumstances and, moreover, the court certainly did not make any order to allow them to obtain my credit report, nor did Ms. McMahon and Ms. Burnett make any application or request of any kind to obtain my credit report. The purpose of their obtaining of my credit report was to search out my assets and to invade my privacy in their ongoing obsession with me. A Law Society of Alberta complaint is also in progress against Ms. Burnett at the conduct committee re-examination stage. The unlawful obtaining of my credit report as it relates to Ms. Burnett has not yet been introduced to the law society complaint but it is forthcoming. Mr. Herman’s account of these matters would have you believe otherwise.

In his letter, Mr. Herman also goes into other irrelevant details relating to Justice Earl Wilson, the former case management judge in my medical malpractice, and for a short time the case management judge in my case against Ms. McMahon, Ms. Burnett and Gowlings. Ms. McMahon and Ms. Burnett egregiously judge shopped for Justice Wilson to be their case management judge in the action against them, while my application for Justice Wilson’s recusal was in fact in process in the medical malpractice action. In January 2015, Justice Wilson was eventually removed from case managing my cases on grounds of judge shopping, bias and conflict of interest.

Conclusion

Mr. Herman’s foray into irrelevant matters of my medical malpractice lawsuit, my case against Ms. McMahon, Ms. Burnett and Gowlings, and my law society complaints against them, and other matters irrelevant to my PIPA request, is perplexing and an abuse of the OIPC process. Gowlings’ unlawful obtaining of my credit report, the subject and purpose of my PIPA request, is not even part of my lawsuit against them at this point.

Mr. Herman’s concentration on irrelevant matters and failure to observe the real reason for my PIPA request which he is well aware of – Gowlings’ unlawful obtaining of my credit report – is merely a smokescreen in resisting production of my credit and financial information improperly in their possession, because they know it exposes them to further liability, including potential conviction for serious breaches of PIPA.

I am deeply offended by Ms. McMahon’s and Ms. Burnett’s egregious invasion of my privacy in improperly obtaining my credit report and I look forward to an appropriate resolution.

I anticipate submitting my formal OIPC review request within the coming week.

Thank you for your attention. 

Defendant Megan McMahon Acknowledges Unlawful Credit Report Pull

In response to the Law Society of Alberta complaint allegations served against defendant lawyer Megan McMahon, she has acknowledged that her law firm Gowlings did indeed pull the opposing plaintiff/complainant's credit report without the plaintiff's consent. This is one of a number of misconduct issues Ms. McMahon faces before the Law Society.

Under Alberta legislation, the act of pulling a credit report without consent and without meeting conditions set out in the Alberta Fair Trading Act and Alberta Personal Information Protection Act is considered a serious violation of those acts and illegal. Courts frequently award damages for this violation, as in the unrelated case of Chitrakar v. Bell TV, 2013 FC 1103 where the Federal Court described a company's unlawful credit check and violation of privacy as reprehensible. A law firm that violates the law should be treated no differently, and this includes a law firm attempting to search out assets of an opposing party.

In admitting to the pulling of the plaintiff's credit report, Ms. McMahon attempted to somehow justify the breach with the excuse that they made a court motion for security for costs, which they in fact lost, in the underlying medical malpractice case. Security for costs motions are a common tactic by law firms to attempt to halt lawsuits. Not only did the court dismiss Ms. McMahon's motion for security for costs because it had no merit, Alberta legislation only allows for pulling of a credit report as part of legal proceedings in the rare circumstance that a court actually makes a specific order for such, which certainly did not happen here.

The admission by Ms. McMahon alluded to a "colleague" being involved in the credit report pull. Whether the colleague referred to is Taryn Burnett, whose removal as defence counsel in the underlying case was at about the same time as the credit report pull, will also be determined in court proceedings and the Law Society complaint earlier made against Ms. Burnett.

While an illegal credit report pull is by itself a serious breach of Alberta legislation, it is particularly serious here as it relates to the allegations of fraud in the lawsuit currently in progress against defendants Ms. McMahon, Ms. Burnett and Gowlings. After a long delay, court proceedings are scheduled to resume in June 2016.

Update: In yet another delay in the lawsuit against the defendant lawyers, court proceedings have been rescheduled from June 2016 to December 2016, prolonging the plaintiff's wait for justice.