Canada: Court of Appeal Allows Action For Breaches Of Privacy Relating To Personal Health Information

Last Updated: February 23 2015
Article by Marco P. Falco

The Ontario Court of Appeal has recently allowed common law actions for invasions of privacy relating to personal health information. In so doing, the Court has made it clear that the Ontario Personal Health Information Protection Act, S.O. 2004, c.3, Sched. A ("PHIPA") does not preclude courts from hearing civil actions for invasion of privacy rights in relation to patient records.

In Hopkins v. Kay, 2015 ONCA 112, per Sharpe J.A., the plaintiffs commenced a class action against the Peterborough Regional Health Centre (the "Hospital") on the basis that their patient records at the Hospital were improperly accessed. The claim was based upon the new tort of "intrusion upon seclusion"; this tort was established by the Court of Appeal in Jones v. Tsige, 2012 ONCA 32 to award damages to plaintiffs whose privacy rights have been infringed.

The representative plaintiff in Hopkins had attended the Hospital on several occasions for treatment to injuries inflicted upon her by her ex-husband. Though the plaintiff had left her husband, she was still concerned for her safety and took measures to protect her identity.

The plaintiff, along with 280 other patients, were notified by the Hospital, pursuant to PHIPA, that the privacy of her personal health information had been breached. The plaintiff was concerned her ex-husband had paid someone to access her patient records to locate her. The claim in the class action alleged that a nurse at the Hospital and other Hospital employees had improperly accessed and disclosed patient records. The claim further alleged that the Hospital failed to adequately monitor its staff and implement policies and systems to prevent the improper access to personal health information and records. The class action sought damages against the Hospital for intrusion upon seclusion.

Following the commencement of the class action, the Hospital brought a motion under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to dismiss the claim on the basis that PHIPA represented an exhaustive code for breaches of privacy rights relating to personal health information. According to the Hospital, Ontario Courts therefore have no jurisdiction to hear civil claims based on breaches of privacy rights governed by PHIPA.

The Court of Appeal dismissed the Hospital's motion and held that PHIPA does not create an "exhaustive code". Accordingly, the plaintiffs could bring a class action for intrusion upon seclusion for the defendants' improper access to and disclosure of patient records.

After analyzing the legislative scheme set out in PHIPA, the Court of Appeal made the following rulings:

1. The Ontario Legislature Did Not Intend to Create an Exhaustive Code in PHIPA.

First, the Court held that the process established under PHIPA for breaches of privacy relating to personal health information was designed to allow an investigation into systemic privacy issues. In other words, PHIPA was not designed for the resolution of individual privacy complaints.

The Court recognized that the Act gives the Information and Privacy Commissioner (the "Commissioner") the power to review breaches of privacy. However, the Court held that the Act leaves the procedure to be followed in conducting these reviews to the Commissioner. For example, reviews were generally conducted in writing and there was no requirement for an oral hearing. Moreover, section 57(4)(b) of the Act provides that one of the factors the Commissioner is to take into account in deciding whether to investigate a privacy complaint is whether the complaint could more appropriately be dealt with "by means of a procedure, other than a complaint under [PHIPA]". Accordingly, the complaint procedure under PHIPA was never intended to be exhaustive and exclusive.

Perhaps most important, under PHIPA, the Commissioner has no power to award damages. Under section 65 of the Act, where the Commissioner makes an order that the individual complainant can seek damages to compensate for the actual harm suffered as a result of violations of PHIPA, the complainant has to commence a proceeding in the Superior Court to seek damages. Accordingly, the Court of Appeal held that the inability of the Commissioner to award damages meant that the Commissioner was never intended to play a comprehensive role in dealing with individual complaints.

Second, the essential nature of the plaintiff's claim in this case was one based on the tort of intrusion upon seclusion. According to the Court, actions based on this tort would not undermine the PHIPA scheme. The elements required to establish a claim for intrusion upon seclusion are as follows: (i) intentional or reckless conduct by the defendant; (ii) that the defendant invaded, without lawful justification, the plaintiff's private affairs or concerns; and (iii) that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. The Court held that these elements for the common law action were more difficult to establish than a breach of PHIPA. Accordingly, the plaintiff in an action for intrusion upon seclusion would not be trying to "circumvent" PHIPA by commencing a civil action.

Third, the complaint procedure set out under PHIPA does not provide the individual with "effective redress" in the Court's view. The Commissioner, who intervened in the appeal in Hopkins, submitted that while the Court's focus on an action for intrusion upon seclusion was to provide remedies to individuals, the Commissioner was required to focus on addressing "systemic remediation of contraventions of PHIPA". The Court therefore held that where an individual complaint under PHIPA did not raise systemic issues, the Commissioner had the power to decline to conduct a review or make an order that could form the basis for a claim in damages in civil court. Moreover, complainants under PHIPA who were denied the opportunity to pursue a complaint by the Commissioner, would have to face an "expensive and uphill fight on any judicial review challenging a decision not to review [the PHIPA complaint]". Accordingly, the PHIPA process did not provide an adequate mechanism of redress for civil complaints.

For all of the reasons set out above, the Court concluded that the Ontario Legislature never intended PHIPA to be an "exhaustive code" to redress individual breaches of privacy rights relating to personal health information.

2. Case Law Relating to the Exclusive Jurisdiction of PHIPA Is Distinguishable

In support of its argument that PHIPA created an exhaustive code that ousted the jurisdiction of the civil courts, the Hospital relied on certain lines of authority where the Court's jurisdiction had been ousted in favour of the governing tribunal's jurisdiction over the matter. The Court held that all these lines of authority were distinguishable:

  1. First, while the Supreme Court of Canada in Seneca College v. Bhadauria, [1981] 2 S.C.R 181 had held that the Ontario Human Rights Code constituted a comprehensive statutory scheme precluding a civil action for discrimination based on the common law, the Court held that the Human Rights Code was different from PHIPA. That is, unlike the Code, PHIPA explicitly contemplates the possibility of other proceedings in relation to claims arising from the improper use of personal health information.
  2. Second, in the labour relations context, provisions of the Ontario Labour Relations Act required all collective agreements to provide for final and binding arbitration of any dispute between the parties arising from the agreement. The Court in Hopkins held that labour grievances and arbitrations represented an "accessible mechanism for comprehensive and efficient dispute resolution". By contrast, PHIPA was not tailored to deal with individual complaints and its invocation depends largely upon the Commissioner's discretion.
  3. Third, with respect to privacy statutes in other provinces, i.e. British Columbia and Alberta, where the Courts held that privacy statutes "occupied the field" and precluded civil actions based on breaches of privacy, the Court held that in these provinces there was a statutory cause of action for breach of privacy. By comparison, in Ontario there was no general statutory cause of action for breaches of privacy. The wrong the plaintiff sought to redress in Hopkins was based on the common law of intrusion upon seclusion, not a breach of a statute.

For all of the foregoing reasons, the Court held that the case law on which the Hospital relied was distinguishable and did not support the argument that PHIPA was a comprehensive code.

The decision in Hopkins represents an important step in the evolution of privacy law in Ontario. The Court of Appeal established that breaches of privacy relating to personal health information can form the basis of an action in tort, despite the regulation of the use and disclosure of personal health information by statute. The Court's analysis was clearly governed by a concern to provide individual complainants with a feasible form of redress in the civil courts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Marco P. Falco
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.