May 4th, 2015
The tort of intrusion upon seclusion is well-suited to class actions as large scale collection and electronic storage of information lends itself to intrusion on the masses. Importantly, the tort is actionable without proof of loss. In Hopkins v Kay, the plaintiffs alleged that employees of the Peterborough Regional Health Centre accessed their personal health information and distributed it to third parties without their consent. The tort of inclusion upon seclusion was the only cause of action pleaded. The hospital argued that the Personal Health Information Protection Act (PHIPA)  was a comprehensive statutory scheme which occupied the field and precluded the common law cause of action. Justice Edwards rejected the hospital's argument, finding that the Court of Appeal's review of Ontario's privacy legislation in Jones v Tsige should be interpreted as permitting the plaintiffs' claim despite the complaint and enforcement regime available under the PHIPA. The hospital appealed.
The Ontario Court of Appeal recently released its decision dismissing the hospital's appeal. The Court held that the PHIPA does not create an exhaustive code governing patient records and affirmed that courts have jurisdiction to hear common law breach of privacy claims. Justice Sharpe (on behalf of the Court) recognized that there was nothing explicit in the statute dealing with its exclusivity over personal health information disputes. Thus, the issue before the Court was whether the intent to exclude the courts' jurisdiction over these disputes was implied by the PHIPA. The Court held that while the PHIPA does contain an exhaustive set of rules and standards for custodians of personal health information, it lacks detail regarding the procedure for resolution of disputes; the PHIPA essentially leaves the procedure to the discretion of the Information and Privacy Commissioner of Ontario. Moreover, the process established by the PHIPA is designed to investigate systemic – not individual – issues. Justice Sharpe also noted that the provisions of the PHIPA contemplate the possibility of other proceedings, including proceedings in the Superior Court.
The Court of Appeal concluded that it would not undermine the purpose and intent of the PHIPA to permit actions to proceed based upon the tort of intrusion upon seclusion. It reasoned that the elements of the common law tort are more difficult to establish than a breach of the PHIPA. Interestingly, the Commissioner (who was an intervener on the appeal), submitted that granting him exclusive jurisdiction over individual claims would impair his ability to focus on the systemic issues. The Court held that while the PHIPA gave the Commissioner wide discretion to decide whether or not to investigate a complaint, it did not provide individual complainants with effective redress. The Court also held that the wide discretion afforded to the Commissioner reflected the statutory focus on broad issues. For those reasons, the Court of Appeal determined that the PHIPA does not confer exclusive jurisdiction on the Commissioner to resolve all disputes over misuse of personal health information.
Some provincial courts have yet to consider whether their respective provincial legislation exclusively occupies the field of privacy causes of action. It will be interesting to watch this issue unfold in those jurisdictions in light of the Court of Appeal's decision in Hopkins v Kay.
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 2014 ONSC 321.
 SO 2004, c 3 [PHIPA].
 2012 ONCA 32.
 Hopkins v Kay, 2015 ONCA 112.
 Ibid at paras 35-45; See e.g. PHIPA, supra note 2, s 57(4)(b) (one of the factors to be considered by the Commissioner when deciding whether or not to investigate a complaint is whether “the complaint has been or could be more appropriately dealt with, initially or completely, by means of a procedure, other than a complaint under this Act”).
 See PHIPA, supra note 2, s 57(4) (the Commissioner may decide not to review the subject-matter of the complaint for whatever reason the Commissioner considers proper).