In the recent case, Hopkins v Kay, the Ontario Superior Court of Justice recently declined to strike a claim for the tort of intrusion upon seclusion. In doing so, the court appears to have broadened the scope of the tort of intrusion upon seclusion as set out in Jones v Tsige. Companies should be aware of the broadening of the tort of intrusion upon seclusion and take steps to prevent such intrusion.
In January 2012, the Ontario Court of Appeal released Jones v Tsige, in which it held that there is a tort of intrusion upon seclusion in Ontario. Sharpe JA, writing for the court, canvassed jurisprudence from the US and Commonwealth countries and determined that, to reflect the technological changes of modern times, there must be a tort of intrusion upon seclusion. Sharpe JA adopted the elements of the cause of action from The American Law Institute's Restatement (Second) of Torts (2010):
- the defendant's conduct must be intentional or reckless;
- the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and
- a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
Notably, proof of damage is not a necessary element of this intentional tort. [For more on Ontario's Jones v Tsige decision, see this article.]
More recently, in Demcak v Vo, the British Columbia Supreme Court confirmed that there is no common law tort of invasion of privacy in that province. [For more on British Columbia's Demcak v Vo decision, see this article.]
The Facts in Hopkins v Kay
In Hopkins v Kay, the plaintiffs brought an action for the tort of intrusion upon seclusion or breach of privacy on behalf of themselves and all others similarly situated. The plaintiffs allege that 280 patient records of the Peterborough Regional Health Centre (the "Hospital") were improperly accessed and disseminated to third parties, without the patients' consent. The Hospital concedes that the records were improperly accessed and apologized to the plaintiffs. The Hospital brought this case as a motion to dismiss the plaintiffs' action, asserting that it discloses no reasonable cause of action.
The Decision in Hopkins v Kay
In reasons dated January 31, 2014, the Ontario Superior Court of Justice followed Jones v Tsige and held that "the tort of breach of privacy, as alleged in the plaintiff's statement of claim is a claim that should be allowed to proceed". The court reviewed decisions by British Columbia and Alberta courts that found provincial privacy statutes to be a complete code, but declined to follow this line of cases.
The Ontario Superior Court of Justice rejected the Hospital's arguments that Ontario's Personal Health Information Protection Act ("PHIPA") is a complete code and that Jones v Tsige dealt with the federal Personal Information Protection and Electronic Documents Act ("PIPEDA") and as such, should be restricted to the facts of that case. The court commented that if the Hospital's position is to succeed, a decision by the Ontario Court of Appeal is required.
The Ontario Superior Court of Justice awarded costs of this motion to the plaintiff in the amount of $24,000.
The refusal of the court in Hopkins v Kay to limit the findings of the court in Jones v Tsige to the facts of that case, widens the availability of the common law tort of intrusion upon seclusion. However, it is important to note that the Ontario Superior Court of Justice did not find that the plaintiffs met the tort of intrusion upon seclusion, but rather found that it was not so plain and obvious that the claim should be struck. It will be interesting to see whether the plaintiffs succeed in their claim.
As we have noted in previous blogs, the existence of a statutory cause of action in some provinces, such as British Columbia, may preclude consideration of a common law claim for intrusion upon seclusion. From this perspective, it is interesting to note the differences between a statutory claim under PHIPA and a common law claim for intrusion upon seclusion, as highlighted by the Ontario Superior Court of Justice:
- Firstly, a breach of PHIPA requires proof of actual harm, while intrusion upon seclusion does not.
- Secondly, damages for a breach of PHIPA are limited to $10,000, while damages for intrusion upon seclusion awarded by the courts could be upwards of $20,000.
By refusing to limit the damages available under the common law claim to claims made pursuant to PHIPA, more claimants may opt to pursue claims under the common law tort of intrusion upon seclusion, as opposed to statute, since proof of actual harm is not required and a greater quantum of damages may be awarded.
However, not all claimants will have the option to pursue claims under the common law tort as the common law tort of intrusion upon seclusion is not recognized in all provinces in Canada. As Sharpe JA noted in Jones v. Tsige, "The question of whether the common law should recognize a cause of action in tort for invasion of privacy has been debated for the past one hundred and twenty years." The debate in Canada is clearly far from over, and it will be interesting to see whether other jurisdictions adopt a common law cause of action (as in Ontario), enact a statutory cause of action (as in BC), or both.
* Rachel Ries is an Articling Student at McCarthy Tétrault.
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