In the recent case of Hemeon v. South West Nova District Health Authority 2015 NSSC 287 (“Hemeon”), the Nova Scotia Supreme Court did two things: (1) arguably recognized the tort of “intrusion upon seclusion” for that province; and (2)  the discussed the extent of production obligations in class proceeding with respect to mental distress, which is not part of the tort in Canada, but is in other jurisdictions. The decision also provides guidance on the degree to which productions must be connected to the issues that are common to the class of plaintiffs in the proceeding.

Background

Hemeon concerns a production motion brought by the defendant in a certified class proceeding following a request made to a representative plaintiff, Alicia Hemeon. In the main action, the plaintiffs allege that a former employee of the defendant Health Authority committed the tort of “intrusion upon seclusion” by accessing their medical records in an unauthorized manner at a Nova Scotia hospital. The claim asserts that the defendant is both vicariously and independently liable for the alleged privacy breach. The trial of the common issues is scheduled for April 2016.

Ms. Hemeon was examined for discovery in August 2014. During her examination, she responded to a number of questions about how she felt when she learned about the alleged privacy breach. One such question was whether she had changed her “hospital attending behaviour” as a result of the alleged privacy breach. She acknowledged that she did begin attending other hospitals. The Health Authority then asked for the production of medical records to confirm this answer – a request which Ms. Hemeon’s counsel refused. The defendant’s motion was brought in order to compel production of the records in dispute.

“Intrusion Upon Seclusion” Comes to Nova Scotia

 The tort of intrusion upon seclusion was recognized by the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32. Shortly thereafter, the Supreme Court of British Columbia held in Demcak v. Vo, 2013 BCSC 899  that this tort was not available in BC. because that province’s privacy statute, which included a provision for a statutory tort, was a “complete code” and plaintiffs were bound by it. The result of these two decisions was to create a patchwork of provinces where “intrusion upon seclusion” may or may not be recognized. In many provinces, there were enough differences between that province’s privacy laws and B.C.’s “complete code” that the question was an open one. Nova Scotia was such a province.

In Hemeon, Pickup J. conceded that there had been no formal recognition of the tort in Nova Scotia, but went on to say that its existence has been “referred to” in jurisprudence from the courts.

While not explicitly recognizing the tort in Trout Point Ltd. v. Handshoe, Hood J. cited Jones…and held that ‘in an appropriate case in Nova Scotia there can be an award for invasion of privacy or as the Ontario Court of Appeal called it, the ‘intrusion upon seclusion.’.

Pickup added that another case, the certification motion in Murray v. Capital District Health Authority (cob East Coast Forensic Hospital), had found that while the tort of intrusion upon seclusion may be novel, it was nonetheless allowed to proceed because the Class Proceedings Act did not bar novel claims, but rather just those had absolutely no chance of success.

It would appear that the tort of intrusion upon seclusion is at least implicitly recognized in Nova Scotia.

But which aspects of the tort? And what elements?

The defendant’s position was that if the tort was recognized, it should include as an element that the breach caused “anguish and suffering”. As a consequence of that, the defendant argued, the disclosure of the representative plaintiff’s medical records is necessary because the court needs a factual record before it, in case it decides to interpret the tort of intrusion upon seclusion as requiring the element of “anguish and suffering”.  The plaintiff’s position was that not only was the tort not recognized in Nova Scotia, but this element has not been required by Canadian courts that have recognized the tort, and the medical records were therefore not relevant and should not be disclosed.

This led to the motion for production.

Motion for Production

 In his decision, Pickup J. found that the relevance of productions to the common issues takes precedence in framing the scope of the production obligations that exist before the trial of common issues has occurred.

Pickup J. cited precedents in Ontario and Alberta that distinguished between productions that can be compelled before and after the trial of the common issues has occurred. The only materials that can be compelled pre-trial are those that touch on the common issues. Once the common issues have been resolved, discovery of individual class members on other matters may be ordered. This approach was supported by the plaintiffs. Pickup J. noted, however, that some Ontario authority exists for broadening the scope of discovery beyond the common issues.

The Health Authority preferred the broader approach taken by the courts in British Columbia. Namely, that production can be compelled for all materials that meet the standard thresholds of materiality and relevance. Yet, even the B.C. courts have concluded that the “key determinants” of materiality and relevance were the certified common issues.

Determining Relevance to Common Issues

Ultimately, Pickup J. hews closely to the common issues approach preferred by the plaintiff. Within this framework, it falls to the party seeking production to prove that the records are relevant.

For example, based on the arguments presented, Pickup J. determined that production would not be required where:

  • The records are not relevant to the class members at large, but only to the subjective experience or damages of the individual plaintiff (which could be produced after the trial of common issues);
  • The records are not related to an element of the cause of action that is defined in the jurisprudence (in this case, the tort of intrusion upon seclusion); or
  • The records relate to a matter that is essentially a policy decision on the part of the judge.

The fact that there is reference to the subject of the records in the litigation plan is also not a ground for production. Pickup J. observed that litigation plans are typically developed well before the common issues are determined, and are thus of little assistance in framing their parameters.

This decision provides an important restatement of the production obligations facing parties to class proceedings and of the implications of those obligations for litigation strategy. The degree of relevance to common issues may work to facilitate or bar the production of materials.