A recent decision of the Ontario Court of Appeal has clarified the scope of the tort of "intrusion upon seclusion" first recognized by the same court in Jones v. Tsige in 2012. In Hopkins v. Kay, a proposed class action involving unauthorized access to health records by hospital employees, the Ontario Superior Court of Justice declined to dismiss the class proceeding as failing to plead a reasonable cause of action. The Superior Court did not accept an argument that the Personal Health Information Protection Act (PHIPA) is an exclusive, comprehensive code for privacy obligations in the medical records context that displaced the common law privacy tort established in Jones. This argument was also unsuccessful before the Court of Appeal, which confirmed that PHIPA does not displace the common law tort of intrusion upon seclusion.
Hopkins expands the scope of intrusion upon seclusion to privacy violations in the medical records context, which could encourage more class actions in areas traditionally regarded as exclusively covered by provincial health privacy statutes. The effectiveness of intrusion upon seclusion as a cause of action for class proceedings still remains to be seen. While it is now open to plaintiffs to plead intrusion upon seclusion in the medical records context, the substantive test for this tort still remains a difficult one to meet at trial.
FACTS AND ANALYSIS
The alleged privacy violation at issue was the wrongful access by hospital employees of 280 hospital patient records and the dissemination of that information to unknown third parties. The plaintiffs sought damages for psychological harm and punitive damages. In response, the defendants brought a motion to strike on the basis that the pleadings disclosed no reasonable cause of action because PHIPA precludes any civil action based on the common law. The Court of Appeal disagreed with the defendants and held that PHIPA does not displace the common law tort of intrusion upon seclusion, as explained below.
Greater Scope of Tort of Intrustion upon Seclusion
The Ontario Court of Appeal created the tort of intrusion upon seclusion in its 2012 decision in Jones. The elements of the tort are: (1) the defendant's conduct was intentional or reckless, (2) the defendant invaded the plaintiff's private affairs or concerns without lawful justification, and (3) a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish. Notably, there is no need to prove dissemination of the affected information, nor is there any economic harm flowing from the wrongful access of the information.
In Hopkins, the Court of Appeal found that PHIPA did not displace the common law tort of intrusion upon seclusion for three reasons. First, PHIPA did not create an exclusive dispute resolution process for resolving conflicts arising from wrongful access to medical records. Rather, the statute specifically contemplates that a parallel court proceeding may exist and even precludes the Commissioner from awarding damages. Second, the court held that intrusion upon seclusion has a fundamentally different character than a breach of PHIPA because its elements — especially the first and third elements mentioned above — are different from, and significantly harder to prove than, the elements for proving a breach of PHIPA. The court then dismissed concerns that intrusion upon seclusion does not require proof of actual harm, finding that, without such proof, only a "modest conventional sum" of damages is available. Third, the court was concerned that PHIPA does not provide claimants with effective redress because the Commissioner will often not investigate individual complaints but will instead focus on systemic problems. Because PHIPA failed on these three factors, the court concluded that it did not displace the common law tort of intrusion upon seclusion.
Hopkins represents a departure from the primary motivating factor in Jones: that there was no alternative means for the plaintiff in that case to recover damages. In contrast, PHIPA does provide a potential claim for court-awarded damages for the unlawful collection and disclosure of personal health information.
Despite the availability of this statutory remedy, the court declined to limit the tort of intrusion upon seclusion in the medical records context. It should be noted that the test to strike out a claim on a preliminary motion like the one brought by the hospital in Hopkins is very high. The court will only strike a claim as disclosing no reasonable cause of action where it is "plain and obvious" that it has no chance of success, and will generally not decide novel issues of law on such a motion.
Implications for Privacy Class Actions Remain to Be Seen
While the Court of Appeal's decision confirms that plaintiffs can pursue a claim based on the tort of intrusion upon seclusion in the medical records context, this by no means guarantees the success of the claim at trial. Intrusion upon seclusion remains a difficult tort to prove. To date, there have been no successful class actions for intrusion upon seclusion, but several cases are in the preliminary stages. Still, the possibility created by Jones of up to C$20,000 of damages per plaintiff without any proof of actual harm may encourage further class actions, including in the health-care sector. Together with the potential liability already created by PHIPA, this will likely add to the publicly paid costs of health-care services.
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