In Hopkins v Kay,1 the Ontario Court of
Appeal concluded that the Personal Health Information
Protection Act (PHIPA) is not a "complete code" and
therefore did not "oust" the plaintiff's common law
tort claim for breach of privacy (the tort of intrusion upon
seclusion). Hopkins provides important guidance in the
fields of privacy law and class actions, as well as with respect to
the sustainability of privacy claims that touch upon areas governed
Hopkins v Kay is a proposed class action involving the
breach of patients' privacy rights by the Peterborough Regional
Health Centre (PHC). The plaintiffs allege that the personal health
information of 280 patients had been improperly accessed and
disclosed by PHC and its employees. The statement of claim
initially pleaded breaches of the PHIPA but was later amended to
assert only the common law tort of intrusion upon seclusion.
The defendants brought a motion to strike the plaintiff's
claim under Rule 21 of the Rules of Civil Procedure, on
the basis that the PHIPA was a complete statutory code with its own
administrative and enforcement regime that operated to preclude the
plaintiffs' common law tort claim. The defendants' motion
was dismissed at the first instance, and that decision was upheld
by the Court of Appeal.
The Ontario Court of Appeal decision
Whether a statutory scheme may be relied on to preclude common
law claims is determined on the basis of legislative intent. The
court must consider whether the legislature intended, expressly or
by implication, to occupy the field and exclude all non-statutory
In concluding that there was no legislative intention to limit
common law claims for breach of privacy, the Court of Appeal relied
on three primary reasons:
The act is "sparse" with respect to the process for
enforcing statutory breaches. The process to be followed is
effectively at the discretion of the Information and Privacy
Commissioner (the Commissioner). In addition, in various sections
the PHIPA expressly contemplates the possibility of claims and
proceedings outside of the statute, including proceedings seeking
damages in the Superior Court.
The common law tort of intrusion upon seclusion is more
difficult to establish than a breach of the PHIPA. Accordingly,
allowing the plaintiff's claims to proceed would not
"circumvent" the PHIPA or the requirements it
The Commissioner's investigation powers under the PHIPA are
targeted at systemic privacy issues, as opposed to individual
claims (this reading of the legislation was supported by the
Commissioner himself, who intervened in the appeal). If individuals
were required to pursue privacy claims through the Commissioner, it
may often be the case that the Commissioner decides not to pursue
such claims, thus requiring individuals to engage in the
"expensive and uphill fight" that would be a judicial
review of the Commissioner's decision.
The decision in Hopkins serves as a timely warning to
organizations that are responsible for large stores of personal
health information. In the event of a data breach of health
information, organizations may be exposed to a risk of liability
under both the PHIPA and the common law, which may have significant
implications for the conduct of privacy-related class actions.
1 2015 ONCA 112.
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