A recent decision of the Ontario Superior Court of Justice has addressed the scope of the tort of “intrusion upon seclusion” first recognized by the Ontario Court of Appeal in Jones v. Tsige in 2012. In Hopkins v. Kay, a proposed class action involving unauthorized access to health records by hospital employees, the Superior Court declined to dismiss the class proceeding as failing to plead a reasonable cause of action. The Superior Court did not accept an argument that the Personal Health Information Protection Act (PHIPA) is an exclusive, comprehensive code for privacy obligations in the health-care context that displaced the common law privacy tort established in Jones.

NEW TORT OF “INTRUSION UPON SECLUSION”

In Jones, the Court of Appeal confirmed for the first time that “intrusion upon seclusion” is a valid cause of action in Ontario. See our previous Blakes Bulletin: Ontario Court of Appeal Recognizes New Privacy Tort. In Jones, the plaintiff’s privacy had been invaded by the defendant, an employee of a Canadian bank who improperly accessed the banking records of her common law partner’s ex-wife, for personal reasons, without authorization. The Court of Appeal recognized the new privacy tort, granted judgment in favour of the plaintiff, and awarded damages for the invasion of her privacy. Since Jones, there have been very few cases considering the scope of the new intrusion upon seclusion tort.

FACTS AND ARGUMENTS RAISED IN HOPKINS

In Hopkins, the plaintiffs allege that the medical records of approximately 280 patients were intentionally and wrongfully accessed by the defendants, a hospital and several of its employees, and a community college, and disseminated to unknown third parties. The hospital acknowledged that the medical records had been improperly accessed and had already taken corrective action by apologizing to all affected patients and dismissing the employees involved. The plaintiffs commenced an action, relying on the tort of intrusion upon seclusion, seeking damages for psychological harm as well as punitive damages. The hospital brought a motion to strike the plaintiffs’ claim on the basis that it did not disclose any reasonable cause of action and that the court had no jurisdiction over the claim.

The hospital’s position was that the subject matter of the plaintiffs’ claim fell squarely within the scope of the PHIPA, a comprehensive legislative scheme dealing specifically with personal information in the health-care context. Under PHIPA, a claim for damages in the Superior Court may only be commenced if the Office of the Information and Privacy Commissioner of Ontario has first investigated the matter and made an order that has become final. Damages under PHIPA are limited to “actual harm” suffered by the claimant, and a maximum of C$10,000 for mental anguish if the conduct was wilful or reckless. By contrast, the Court of Appeal held in Jonesthat in the absence of economic harm, a court may award damages of up to C$20,000 for the common law intrusion upon seclusion tort. The court in Jones also held that punitive damages may be available with respect to the new tort, though it did not encourage such awards.

On the motion to strike in Hopkins, the hospital argued that allowing a common law claim for breach of privacy to proceed would render meaningless the limitations that were deliberately built into the remedial provisions of PHIPA. Put another way, the hospital’s position was that PHIPA constitutes a complete code with respect to the protection of personal health information, with its own administration and enforcement scheme that has displaced the common law and ousted the jurisdiction of the court to deal with the plaintiffs’ claim.

The Superior Court rejected the hospital’s argument and held that the class action could proceed. The motions judge treated Jones as deciding broadly that a claim for intrusion upon seclusion should be permitted to proceed in Ontario. In doing so, he declined to follow a line of cases from British Columbia and Alberta finding that various provincial privacy statues constitute a complete code precluding a common law claim for breach of privacy. The motions judge noted that the Court of Appeal had discussed various privacy-related statutes inJones, including PHIPA and the federal Personal Information Protection and Electronic Documents Act(PIPEDA), but had nevertheless decided to recognize the common law tort. He did not engage in an analysis of the scheme of PHIPA to determine whether the Ontario legislature had intended to oust the court’s common law jurisdiction to deal with breaches of privacy in the health-care context.

ANALYSIS

Unfortunately, the court in Hopkins appears to have overlooked some of the unique circumstances in Jones that led the Court of Appeal to recognize a common law privacy tort. In Jones, the question of whether other legislation had “occupied the field” did not squarely arise, because the Court of Appeal accepted that there was no legislation that directly applied to the dispute between the parties. The court in Jones accepted that the defendant was acting as a “rogue employee” and contrary to the bank’s policy. As PIPEDA does not apply to individuals who collect or use information for personal or domestic purposes, there was no remedy available to the plaintiff under PIPEDA as against the defendant. Although the plaintiff chose not to sue the bank itself, the Court of Appeal expressed doubt as to whether PIPEDA would provide any remedy against the employer in any event, given that the employee had acted contrary to bank policies.

In light of this gap in the privacy legislation, the Court of Appeal in Jones held that the common law should be incrementally expanded to recognize a tort of intrusion upon seclusion. The Court of Appeal held: “In my view, the law of this province would be sadly deficient if we were required to send Jones away without a legal remedy.” By contrast, in Hopkins, it seems clearer that the plaintiffs would have been able to seek recourse, including a potential claim for damages, under PHIPA for the unlawful collection and disclosure of their personal health information. The motions judge did not address this distinguishing factor.

It should be noted that the test to strike out a claim on a preliminary motion like the one brought by the hospital in Hopkins is very high. The court will only strike a claim as disclosing no reasonable cause of action where it is “plain and obvious” that it has no chance of success, and will generally not decide novel issues of law on such a motion. In dismissing the motion, the motions judge suggested that the Ontario Court of Appeal may need to weigh in again on the scope of the new tort.