Health Records Covered by Tort of Intrusion Upon Seclusion – By Alan Melamud

In another case highlighting the use of the new tort of intrusion upon seclusion, the Ontario Court of Appeal held that an individual can sue at common law for the invasion of his or her health records, notwithstanding the remedial and complaint procedures established by the Personal Health Information Protection Act, S.O. 2004, c. 3, Sch. A (“PHIPA”).

Hopkins v. Kay, 2015 ONCA 112, involved a proposed class action arising from the alleged wrongful access of health records by employees of the Peterborough Regional Health Centre (the “Hospital”). The Representative Plaintiff originally relied on breaches of PHIPA to assert a cause of action against the Hospital, but later amended her claim to solely plead the tort of intrusion upon seclusion. In response, the Hospital brought a Rule 21 motion to strike the claim. It argued that PHIPA established an exhaustive code to address the wrongful invasion of health records, ousting the jurisdiction of the Superior Courts and the application of the common law tort of intrusion upon seclusion. The motion was denied.

On appeal, the Court of Appeal upheld the lower court’s judgment, finding the PHIPA did not create an exhaustive code. The Court noted that PHIPA did not contain explicit language establishing an exhaustive code for breach of privacy involving health records, and so considered whether such a statutory intention could be implied. To frame its analysis, the Court adopted the test set out in Pleau v. Canada (A.G.), 1999 NSCA 159, leave to appeal refused, [2000] S.C.C.A. No. 83, where Justice Cromwell (as he was then) identified three considerations to determine whether the legislature intended to confer exclusive jurisdiction:

  1. the process for dispute resolution established by the legislation, and whether the language used is consistent with exclusive jurisdiction;
  2. the nature of the dispute, and the extent to which it is regulated by the legislative scheme; and
  3. the capacity of the scheme to afford effective redress.

Process & Language

The Court found that the process and the language found in PHIPA were not consistent with an exhaustive code. The Act did not provide any of the procedural mechanisms or safeguards of the adversarial system, and section 59(1) of the Act excluded the application of the procedural rights granted by the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. The process pursuant to PHIPA was more “inquisitorial” – a process designed to facilitate the investigation of systemic issues; a view supported by submissions from the Information and Privacy Commissioner (the “Commissioner”), who was charged with addressing complaints under PHIPA.

The language of PHIPA further encouraged and even required resort to the courts. Section 57(4) of the Act permitted the Commissioner to not review a complaint for whatever reason he considered proper, including the existence of an alternate more appropriate procedure (s. 57(4)(b)). Moreover, the Act did not permit the Commissioner to award damages, but instead, s. 65 permitted an individual to seek damages in the courts following the Commissioner’s finding of a contravention of the Act.

Nature of the Dispute

On the second consideration, the Court concluded that a claim for intrusion upon seclusion was more difficult to establish than a breach of PHIPA, and therefore permitting such claims would not circumvent the “substantive provisions” of the Act.

A claim for intrusion upon seclusion requires the plaintiff to establish:

  1. intentional or reckless conduct by the defendant;
  2. that the defendant invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
  3. that a reasonable person would regard the invasion as highly offensive causing distress, humiliation, or anguish.

Neither the first or third elements need to be shown to establish a contravention of PHIPA.

The Court did acknowledge that permitting a common law claim for the invasion of health records would circumvent the complaint procedure established by PHIPA. However, as described below, the Court found that the PHIPA procedure did not provide effective redress for individual complaints, so resort to the courts could stand alongside PHIPA to fill this void.

Capacity of the Scheme to Afford Effective Redress

The Court found the complaint procedure to be ineffective for individual complaints largely based on the Commissioner’s submissions. The Commissioner submitted that his focus was the systemic remediation of contraventions of PHIPA, not providing remedies to individuals for an invasion of their health records. Given this, the Court concluded that many individuals may be left without a remedy where the systemic issue that resulted in the invasion of their health records had been addressed. As noted above, s. 57(4) of the Act gives the Commissioner considerable discretion whether to even consider a complaint. It could not therefore be said that PHIPA would afford effective redress to individuals.

Based on the foregoing, the Court refused to imply a legislative intention to confer exclusive jurisdiction on the Commissioner to address the improper use and invasion of personal health records.

Other Exhaustive Codes

Following its conclusion, the Court went on to distinguish the Appellants’ attempt to rely on other codes and acts that the courts had found created an exhaustive regime that ousted the jurisdiction of the courts, namely: (1) the Ontario Human Rights Code, R.S.O. 1970, c. 318 (the “Code”); (2) the Labour Relations Act, R.S.O. 1990, c. L.2 (the “LRA”); and (3) the privacy statutes of British Columbia and Alberta. Unlike PHIPA, the Code and the LRA did not contemplate alternative procedures and were intended to address individual complaints and provide individual remedies. The privacy acts were distinguishable because they created a statutory right of action, which was unavailable in Ontario. The Court noted that the Plaintiff was not seeking damages based on a breach of PHIPA, but rather solely relying on the tort of intrusion upon seclusion.

 

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