Ontario court rules tort of intrusion upon seclusion not
precluded by PHIPA
The Ontario Superior Court of Justice has considered the
applicability of the common law tort of intrusion upon seclusion in
the context of healthcare. In Hopkins v. Kay,1
the Court held that the recourse available for breaches of private
health information under the Ontario Personal Health
Information Protection Act (PHIPA)2 does not
preclude a common law tort action for breach of privacy: PHIPA does
not oust the common law.
Between 2011 and 2012, approximately 280 patient records held by
the Peterborough Regional Health Centre (Health Centre) were
wrongfully and intentionally accessed without consent. The Health
Centre acknowledged the breach, apologized to the affected
patients, and dismissed the individuals who had improperly accessed
the records. The plaintiffs, on behalf of themselves and all other
affected patients, commenced a class action based on a common law
tort recently recognized by the Court of Appeal in Jones v.
Tsige: intrusion upon seclusion.3 The Health Centre
brought a motion to strike the plaintiffs' claim on the basis
that there was no reasonable cause of action and that the Ontario
Superior Court of Justice lacked jurisdiction to adjudicate the
Common law tort not precluded by provincial privacy
The Health Centre argued that the plaintiffs were precluded by
PHIPA from commencing a common law action. PHIPA is a provincial
statute with an enforcement framework, administered by the
Information and Privacy Commissioner of Ontario, which prescribes a
specific procedure for dealing with breaches of private health
information. The PHIPA framework precludes any civil action based
on the common law until after a conviction is issued under PHIPA,
or until the Commissioner has issued a final order.
Noting that the threshold for striking out a claim is high, the
Court held that it was not plain and obvious that the
plaintiffs' claim disclosed no reasonable cause of action. In
dismissing the Health Centre's motion, the Court observed that
when the Court of Appeal first recognized the tort of intrusion
upon seclusion in 2012, it was "well aware of the provisions
of PHIPA and the potential impact of recognizing a common law tort
of breach of privacy."4 The Court held that the
tort recognized in Jones v. Tsige, a case dealing with
federal legislation, should not be restricted to the facts of that
It should be noted that the Court's decision simply allows
the case to proceed, with the merits of the claim to be determined
Potential expansion of damage awards
In allowing the plaintiffs' claim to proceed, the Court also
noted the disparity between damages available under PHIPA compared
to those available under the common law. Healthcare organizations
should therefore be aware of the potential for an expanded range of
damage awards for breaches of private health information. Under
PHIPA, damages are capped at $10,000 for mental anguish. Should a
claim for intrusion upon seclusion be successful, damages are not
capped and are available even where there is no proof of actual
loss. (However, the Court of Appeal in Jones v. Tsige
noted that damage awards in cases where the plaintiff has suffered
no pecuniary loss should be modest, and for such cases, the Court
capped damages at $20,000). The common law tort also allows for
aggravated and punitive damages in exceptional
The Court's decision in Hopkins v. Kay is under
appeal and is scheduled to be heard on December 15, 2014.
Nonetheless, the availability of the tort of intrusion upon
seclusion and the potential expansion of damage awards underscore
the importance of reviewing data security policies and practices to
ensure that personal information, including private health
information, is well-protected.
1 2014 ONSC 321.
2 S.O. 2004, c. 3.
3 2012 ONCA 32.
4 2014 ONSC 321 at para. 29.
5 2012 ONCA 32 at paras. 87-88.
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