The tort of intrusion upon seclusion is well-suited to class
actions as large scale collection and electronic storage of
information lends itself to intrusion on the masses. Importantly,
the tort is actionable without proof of loss. In Hopkins v Kay,1 the plaintiffs
alleged that employees of the Peterborough Regional Health Centre
accessed their personal health information and distributed it to
third parties without their consent. The tort of inclusion upon
seclusion was the only cause of action pleaded. The hospital argued
that the Personal Health Information Protection Act
(PHIPA) 2 was a comprehensive statutory
scheme which occupied the field and precluded the common law cause
of action. Justice Edwards rejected the hospital's argument,
finding that the Court of Appeal's review of Ontario's
privacy legislation in Jones v Tsige3 should be
interpreted as permitting the plaintiffs' claim despite the
complaint and enforcement regime available under the
PHIPA. The hospital appealed.
The Ontario Court of Appeal recently released its decision
dismissing the hospital's appeal. 4 The Court held
that the PHIPA does not create an exhaustive code
governing patient records and affirmed that courts have
jurisdiction to hear common law breach of privacy claims. Justice
Sharpe (on behalf of the Court) recognized that there was nothing
explicit in the statute dealing with its exclusivity over personal
health information disputes. Thus, the issue before the Court was
whether the intent to exclude the courts' jurisdiction over
these disputes was implied by the PHIPA. The Court held
that while the PHIPA does contain an exhaustive set of
rules and standards for custodians of personal health information,
it lacks detail regarding the procedure for resolution of disputes;
the PHIPA essentially leaves the procedure to the
discretion of the Information and Privacy Commissioner of
Ontario. Moreover, the process established by the
PHIPA is designed to investigate systemic – not
individual – issues. Justice Sharpe also noted that the
provisions of the PHIPA contemplate the possibility of
other proceedings, including proceedings in the Superior Court.
The Court of Appeal concluded that it would not undermine the
purpose and intent of the PHIPA to permit actions to
proceed based upon the tort of intrusion upon seclusion. It
reasoned that the elements of the common law tort are more
difficult to establish than a breach of the PHIPA.
Interestingly, the Commissioner (who was an intervener on the
appeal), submitted that granting him exclusive jurisdiction over
individual claims would impair his ability to focus on the systemic
issues. The Court held that while the PHIPA gave the
Commissioner wide discretion to decide whether or not to
investigate a complaint, it did not provide individual complainants
with effective redress. The Court also held that the wide
discretion afforded to the Commissioner reflected the statutory
focus on broad issues.6 For those reasons, the Court of
Appeal determined that the PHIPA does not confer exclusive
jurisdiction on the Commissioner to resolve all disputes over
misuse of personal health information.
Some provincial courts have yet to consider whether their
respective provincial legislation exclusively occupies the field of
privacy causes of action. It will be interesting to watch this
issue unfold in those jurisdictions in light of the Court of
Appeal's decision in Hopkins v Kay.
1 2014 ONSC 321.
2 SO 2004, c 3 [PHIPA].
3 2012 ONCA 32.
4 Hopkins v Kay, 2015 ONCA 112.
5 Ibid at paras 35-45; See e.g. PHIPA, supra note 2, s
57(4)(b) (one of the factors to be considered by the Commissioner
when deciding whether or not to investigate a complaint is whether
"the complaint has been or could be more appropriately dealt
with, initially or completely, by means of a procedure, other than
a complaint under this Act").
6 See PHIPA, supra note 2, s 57(4) (the Commissioner may
decide not to review the subject-matter of the complaint for
whatever reason the Commissioner considers
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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).