Canada: Flag On The Play? Recent Disclosure Of NFL Player's Medical Information Sparks Allegations Of Privacy Violations

Last Updated: July 20 2015
Article by Lyndsay A. Wasser and Jon Wypych

The recent unauthorized disclosure of a National Football League ("NFL") player's medical records has garnered significant media attention. On July 8, 2015, ESPN reporter Adam Schefter posted images of NFL player Jason Pierre-Paul's medical charts on Twitter.1 The records detailed the medical procedures performed on Mr. Pierre-Paul's finger, which was injured in a fireworks incident on July 4th. In response to the news of his injury, the New York Giants pulled Mr. Pierre-Paul's long-term $60 million contract.2

The "twitterverse" quickly denounced Mr. Schefter's revelation as an improper violation of Mr. Pierre-Paul's privacy. While some people may disagree with Mr. Schefter's decision to post full medical records, the question of whether there has been a violation of legal privacy rights remains. If this situation had occurred in Canada, there would be a number of potentially relevant laws to consider.

Provincial Health Sector Legislation

Most Canadian provinces have implemented legislation governing collection, use and disclosure of personal health information.3 For example, in Ontario, the relevant legislation is the Personal Health Information Protection Act ("PHIPA").4 PHIPA applies to health information custodians within Ontario, and includes some provisions that apply to individuals and organizations that receive personal health information from such custodians.

Under PHIPA, a health information custodian who willfully discloses personal health information without consent can be found guilty of an offence and fined up to $50,000, if the person is a natural person, and otherwise up to $250,000.5 Furthermore, if a corporation commits such an offence, "...every officer, member, employee or other agent of the corporation who authorized the offence, or who had the authority to prevent the offence from being committed but knowingly refrained from doing so, is a party to and guilty of the offence and is liable, on conviction, to the penalty for the offence, whether or not the corporation has been prosecuted or convicted."6

In addition, if this incident had occurred in Ontario, Mr. Pierre-Paul could have a potential claim under PHIPA against the individual who disclosed his medical records to ESPN, if such individual was a health information custodian. Under PHIPA, a person affected by conduct giving rise to a conviction for an offence can sue for damages for actual harm caused by the contravention or offence.7 In addition, under PHIPA, willful or reckless conduct may give rise to an award of up to $10,000 for mental anguish.8 Furthermore, in Hopkins v Kay,9 the Ontario Court of Appeal held that PHIPA does not preclude separate tort claims. Therefore, a person who discloses medical records without authorization in Ontario could also face civil exposure for damages.

Tort of "Intrusion Upon Seclusion"

In Canada, the common law protects individuals against certain unauthorized intrusions upon privacy. In the leading case of Jones v Tsige,10 the Ontario Court of Appeal formulated a new tort of "intrusion upon seclusion", as follows:

One who intentionally [or recklessly] intrudes, physically or otherwise, upon the seclusion of another or his [or her] private affairs or concerns, is subject to liability to the other for invasion of his [or her] privacy, if the invasion would be highly offensive to a reasonable person.11

This tort is actionable without proof of economic harm, although the Court did establish some limits upon non-pecuniary damages.12 Jones v Tsige has been followed by courts in a number of Canadian jurisdictions outside of Ontario, including British Columbia,13 Nova Scotia,14 Newfoundland,15 and Manitoba.16

Medical records contain sensitive personal information, and it is conceivable that unauthorized disclosure of such records could meet the threshold of being "highly offensive to a reasonable person." Therefore, in Canada, Mr. Pierre-Paul would potentially have a claim for intrusion upon seclusion against a person who released his medical records.

Statutory Torts

Some provinces in Canada have enacted legislation creating a statutory privacy tort, which provides a right of action against a person who willfully and without a claim of right violates the privacy of another person.17 As with the common law tort described above, proof of damages is not required for such statutory torts. However, the statutory torts appear to establish a lower threshold for claims, as the violation of privacy does not need to meet the standard of being "highly offensive" to a reasonable person.

If an unauthorized disclosure of medical records were to occur in a province where a statutory privacy tort has been enacted, a person in Mr. Pierre-Paul's situation could have a potential recourse under such legislation.

Private Sector Privacy Legislation

In Canada, the federal Personal Information Protection and Electronic Documents Act ("PIPEDA") and substantially similar provincial legislation governs the collection, use and disclosure of personal information in the private sector.18 The term "personal information" has been interpreted broadly,19 and it would certainly include an individual's medical records. However, this legislation generally only applies to the activities of "organizations" (or, in Quebec, "enterprises"). Therefore, this legislation would not generally apply to an individual's actions unless such person was acting in the course of his/her employment, in which case the employing organization could potentially be held responsible for any privacy breach (such as the unauthorized disclosure of personal information).

Furthermore, under PIPEDA and substantially similar legislation, there are exceptions to consent requirements for collection, use and disclosure of personal information solely for journalistic purposes,20 which may be relevant in situations like the one facing Mr. Pierre-Paul.


The disclosure of Mr. Pierre-Paul's medical records provides a good illustration of the complex nature of privacy rights and restrictions. If this situation had occurred in Canada, there are a number of laws that could potentially apply, and such laws vary by province.

Given the complicated network of privacy and data protection laws in Canada, organizations would be well advised to consult with a legal advisor when collecting, using or disclosing personal information, especially sensitive information such as medical records.


1 Brian Stelter, "ESPN reporter tweets player's medical charts, and ethical questions erupt", CNN, July 7, 2015.

2 Dan Diamond, "Jason Pierre-Paul Lost His Finger. Did ESPN Violate HIPAA By Reporting It?", Forbes, July 8, 2015.

3 The only provinces that do not are Quebec and Prince Edward Island.

Personal Health Information Protection Act, 2004, SO 2004, c 3, Sched A.

Ibid at s 72.

Ibid at s 72(3).

Ibid at s 65(1).

Ibid at s 65(3).

9 2015 ONCA 112.

10 2010 ONCA 32.

11 Ibid at para 70.

12 Ibid at para 71.

13 Albayate v Bank of Montreal, 2015 BCSC 695.

14 Murray v Capital District Health Authority, 2015 NSSC 61.

15 Hynes v Western Regional Integrated Health Authority, 2014 NLTD(G) 137.

16 Grant v Winnipeg Regional Health Authority, 2015 MBCA 44.

17 Provinces with privacy acts include British Columbia, Manitoba, Newfoundland and Labrador, and Saskatchewan.

18 Personal Information Protection and Electronic Documents Act, SC 2000 c 5.

19 Canada (Information Commissioner) v Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 SCR 66, 2003 SCC 8 at para 23.

20 Supra note 15, s 4.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2015

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.

Lyndsay A. Wasser
In association with
Related Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions