Canadian Lawyer

40 F e b r u A r y 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m potential for holes in the evidence the Fitbit will provide but it's Muller's cli- ent's prerogative to use it as one form of the evidence to help her claim that she's not as active as she used to be. Using personal health data in legal matters is "a sticky area" says Mark Hayes, of Hayes eLaw LLP in Toronto. "We have personal health information laws in Canada in a number of prov- inces and it's kind of an odd divide because in most of these laws there is the assumption health care providers are the ones who are the repositories of health information and we worry about how they care for information. Now with this information being created by individuals or their devices, who is pro- tecting that data?" He says it's still "very early days" in terms of personal health collection devices and apps that do everything from monitor your heart rate to track how far you went on your morning run. But as personal devices that collect information become more sophisticated and more common the detection or analysis of body conditions can be done more easily outside the traditional circle of care. Hayes says that means all of a sudden personal health information is "outside the regulatory framework" set up thus far. "So how does it then get used and how do you control it?" asks Hayes. "We've been talking about these devices largely in the privacy sphere for the last couple of years because you want to make sure these things are protected and know when an app is collecting information about your health condi- tion. Now we're starting to see this information can be used voluntarily or involuntarily in other contexts." Part of the problem with many devic- es and apps is that the data they produce can be compromised, says Hayes. "It can all be hacked — there are techni- cal and non-technical ways to do it. So you have questionable average data and questionable manipulated data and then you're asking the court to make a conclusion. The whole thing is a little bit odd and not particularly reliable." Not only is the individual's informa- tion potentially not particularly accu- rate — they may deliberately try to be less active — but in this case they will also be bringing in an expert to say what the average activity level is "which is subject to all kinds of frailties as well," says Hayes. In the Calgary case, it is the plain- tiff offering up her own personal data. What happens if a defence lawyer orders a plaintiff to provide that data? It's not hard to see that collection and use of L e g A L r e p o rt \ I t / p r I vA C y L AW now with this inFormation being created by individuals or their devices, who is protecting that data? — marK hayes, hayes elaw LLp Priority Service Code: 14-82CL Featuring a faculty of cybersecurity and privacy experts, this intensive one-day program will provide you with the tools you need to avoid, prepare for and respond to an organizational data breach. Topics include: v&XUUHQWWUHQGVLQGDWDEUHDFKDQGSULYDF\OLWLJDWLRQ v.H\FRPSRQHQWVRIDQHIIHFWLYHGDWDEUHDFKLQFLGHQWUHVSRQVHSODQ v&RQGXFWLQJDQRUJDQL]DWLRQDOUHYLHZWRPLQLPL]HDQGPLWLJDWHULVNV v0DQDJLQJULVNVZKHQVHOHFWLQJYHQGRUVDQGVXEFRQWUDFWRUV v7KHUROHDQGFRPSRVLWLRQRIWKHEUHDFKUHVSRQVHWHDP v/HJLVODWHGEUHDFKQRWLoFDWLRQUHTXLUHPHQWVDQGGUDIWLQJEUHDFKQRWLoFDWLRQV v$UHYLHZRIFXUUHQWEUHDFKPDQDJHPHQWDQGUHFHQWEUHDFKQRWLFHV PLUS! Save 20% when you register for OsgoodePD's Privacy and Information Management in Healthcare (April 9, 2015) Chair Alex Cameron Fasken Martineau DuMoulin LLP Date & Time 0DUFK DPqSP(67 Webcast Available Location Osgoode Professional Development 1 Dundas St. W., 26th Floor 7RURQWR210*= Registration Fee SOXV+67 ,QTXLUHDERXWoQDQFLDODLG JURXSGLVFRXQWV To Register: www.osgoodepd.ca; Or Call: 416.597.9724 or 1.888.923.3394 Or E-mail: OsgoodePD@osgoode.yorku.ca Eligible CPD/MCLE hours: /68&216XEVWDQWLYH&3'+RXUV $:25/'/($'(5,1/$:6&+22/ /,)(/21*/($51,1* 26*22'( 352)(66,21$/ '(9(/230(17 &217,18,1*/(*$/('8&$7,21 Data Breaches: Avoidance, Preparedness and Response ntitled-3 1 2015-01-16 12:42 PM

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