Presentation at the Western Law Interdisciplinary Graduate Student Conference on May 21, 2015, "Law: Helping Hand or Iron Fist?”

1. Class
Ac(on
Intrusions:
Helping
to
develop
privacy
rights,
or
an
overkill
in
liability?
Presented
by
Omar
Ha-­‐Redeye
AAS,
BHA
(Hons.),
PGCert,
J.D.,
L.L.M.
(c),
CNMT,
RT(N)(AART)

2. The
Commission
of
Inquiry
into
the
Confiden(ality
of
Health
Records
in
Ontario
■ Published
in
1980,
following
an
inquiry
into
health
information
and
privacy
concerns.
■ Led
to
the
creation
of
PHIPA
in
Ontario
in
2004.
■ Intended
to
be
a
comprehensive
legislative
scheme
to
address
health
privacy.

3. Mechanism
of
Enforcement
under
PHIPA
■ Complaint
of
suspected
breach
made
to
Commissioner
(s.
56(1)).
■ Investigation
into
complaint
by
the
Commissioner.
■ Discretion
given
to
Commissioner
to
move
forward
with
the
complaint
(s.
56(4)).
■ Compliance
with
Commissioner’s
investigation
is
compulsory.
■ Recommendations
by
the
Commissioner
are
binding
(s.
60).

4. An
Expecta(on
of
Privacy
-­‐
Purpose
of
PHIPA
“Individuals
are
very
concerned
about
how
their
personal
health
information
is
collected,
used
and
disclosed.
They
expect
their
healthcare
providers
to
protect
this
information
and
not
to
use
or
disclose
it,
intentionally
or
inadvertently,
for
purposes
not
related
to
their
care
and
treatment.”
◼ Legislative
focus
is
on
creating
appropriate
balance
for
the
use
of
this
information
for
health
services,
research,
or
other
social
value.
◼ Less
emphasis
on
access
for
inappropriate
reasons,
including
curiosity
and
personal
interest.

5. PHIPA
■ The
PHIPA
has
been
touted
as
“a
gold
standard
for
protecting
privacy”.
■ Yet,
has
numerous
deYiciencies:
■ Inadequate
system
of
redress
for
victims
of
intrusion.
■ Enormous
discretion
of
Commissioner,
and
judicial
remedies
only
on
adverse
Yinding.
■ Redress
only
granted
if
“actual
harm”
proven.
■ Damages
limited
to
$10,000.

6. Jones
v.
Tsige,
2012
ONCA
32
An
Overview
▪ Issue
on
appeal:
Whether
the
common
law
should
recognize
tort
for
invasion
of
privacy.
▪ Court
reviewed
PIPEDA,
PHIPA,
FIPPA,
MFIPPA,
and
the
Consumer
Reporting
Act
to
Yind:
▪ Canadian
Statutory
laws
insufYicient.
▪ Inadequate
damages
to
privacy
breaches.
▪ Focus
on
employer,
not
necessarily
actions
of
wrongdoer
employee.

7. Jones
v.
Tsige,
cont’d
▪ Court
created
common
law
tort
for
invasion
of
privacy
→
Intrusion
upon
Seclusion.
▪ Three-­‐part
test
established
in
order
to
succeed
in
making
a
claim.

8. Tort
of
Intrusion
upon
Seclusion
Three-­‐part
test:
1. The
actions
of
the
Defendant
must
be
intentional
or
reckless.
2. The
Defendant
must
have,
without
prior
authorization
or
justiYication,
to
invade
the
private
affairs
of
the
Plaintiff.
3. The
reasonable
person
would
perceive
the
invasion
as
egregious,
humiliating
and
causing
anguish.

9. Tort
of
Intrusion
upon
Seclusion,
cont’d
Application
to
broad
range
of
societal
interests:
▪ Financial
or
health
records.
▪ Sexual
practices
and
orientation.
▪ Employment.
▪ Diary
or
private
correspondence
that
could
be
reasonably
considered
highly
offensive.

10. Tort
of
Intrusion
upon
Seclusion,
cont’d
Damages:
■ Not
required
to
demonstrate
actual
harm.
■ Maximum
award
generally
limited
to
$20,000.

11. General
Reac(ons
from
the
Bar

12. Applica(on
of
Jones
v.
Tsige
Case
Law
▪ 48
cases
have
looked
to
this
decision
■ [Followed
(4),
distinguished
(2),
explained
(5),
mentioned
(26),
cited
(11)]

13. Class
Ac(ons:
A
Review
▪ Relatively
recent
in
Canada.
▪ Prior:
Rule
75
of
Rules
of
Civil
Procedure,
RRO
1990,
Reg.
194.
▪ DeYicient
mechanism
for
complex,
large-­‐scale
cases;
lack
of
judicial
oversight

14. Class
Ac(ons
in
Common
Law
▪ 3
main
objectives
under
Ontario’s
Class
Proceedings
Act,
1992,
SO
1992,
c.
6:
▪ To
improve
access
to
justice;
▪ To
enable
more
efYicient
and
effective
judicial
management
of
complex
cases
of
mass
injury;
and;
▪ To
coerce
behavioural
modiYication
through
public
accountability.

15. Class
Ac(ons,
cont’d
Advantages
to
class
actions
as
identiYied
by
Justice
McLachlin
:
1. Enhances
judicial
economy
by
preventing
unnecessary
duplication
of
fact-­‐Yinding
and
legal
analysis.
2. Shared
expenses
allow
greater
access
to
justice.
3. Ensures
justice
will
be
served
for
the
wrongful
act
committed.
Chief
Justice
McLachlin
(In
Hollick
v.
Toronto
(City),
2001
SCC
68,
[2001]
3
S.C.R.
158
at
para.
15)

16. Helping
Hand
or
Iron
Fist?
■ $20,000
per
case
is
insigniYicant
alone
as
a
head
of
damages,
and
not
sustainable
for
most
tort
actions
by
itself.
■ But
class
proceedings
make
the
aggregation
of
these
damages
quite
signiYicant.
■ Is
this
overkill?
Or
will
the
threat
of
liability
help
foster
better
privacy
controls?

17. Class
Ac(ons,
Post-­‐Jones
v.
Tsige
▪ Hopkins
v.
Kay,
2015
ONCA
112
▪ Hynes
v.
Western
Regional
Integrated
Health
Authority,
2014
NLTD
137
(stage
1
only)
▪ Subsequent
case
(still
uncertiYied)
with
14,450
patients
at
Rouge
Valley
Health
System
▪ allegation
of
employees
selling
patient
information
to
private
companies.

18. Issues
in
Hopkins
v.
Kay
■ Whether
the
PHIPA
creates
an
exhaustive
code,
and
if
so:
■ Whether
the
respondent
is,
or
should
be,
prevented
from
bringing
a
common
law
claim
for
intrusion
upon
seclusion
in
the
Superior
Court.
■ Whether
patients
whose
privacy
has
been
breached
can
sue
the
hospital
directly.
Hopkins
v.
Kay,
2015
ONCA
112

19. Implica(ons
of
Hopkins
v.
Kay
■ Illustrates
the
increased
potential
liability
and
risk
incurred
by
health
institutions
and
workers.
■ Victims
no
longer
reliant
on
the
Commissioner
to
seek
a
civil
suit.
■ Actual
damages
no
longer
have
to
be
proved,
the
intrusion
alone
is
sufYicient
for
the
case.
■ The
tort
of
intrusion
upon
seclusion
does
not
apply
to
claims
otherwise
covered
by
PHIPA.
Hopkins
v.
Kay,
2015
ONCA
112

20. Grant
v.
Winnipeg
Regional
Health
Authority
et
al.,
2015
MBCA
44
Overview:
■ Charter violations and negligent disclosure of information.
■ Family sought damages after family member’s death.
■ On appeal, Justice Monnin: too early to dismiss the
possibility to make a claim as the result of a privacy breach
of a family member.
Possible implications:
■ Potential privacy interest in genetic information (diseases,
traits).
■ May open door to a much larger plaintiff base than
observed in Hopkins.

21. Disciplinary
Ac(on
“Nurses
are
responsible
for
their
actions
and
the
consequences
of
those
actions.
They’re
also
accountable
for
conducting
themselves
in
ways
that
promote
respect
for
the
profession.”
-­‐Professional
Standards,
College
of
Nurses
of
Ontario

22. Disciplinary
Ac(on,
cont’d
■ Standard
punishment
for
misconduct
(3-­‐month
suspension
of
licence).
■ Potential
of
actions
reoccuring.
■ Does
not
order
disclosure
of
offence
when
seeking
new
employment.

23. Conclusions
■ Can
the
alternatives
be
strengthened?
■ Overhaul
of
failing
privacy
and
health
legislation
§ e-­‐PHIPA
(Bill
78)
■ Reassess
disciplinary
measures
for
privacy
breaches

24. Conclusions,
cont’d
▪ Class
actions
can
allow
greater
to
justice
for
those
that
would
otherwise
be
unable
to
bring
claim.
■ Review
of
policies,
education
and
training
by
health
facilities.
▪ Use
tort
of
intrusion
upon
seclusion
in
class
actions
should
encourage
stronger
protection
of
personal
health
information
by
health
facilities.

26. Thank
You
For
Listening!
Contact
▪ Twitter
-­‐
@OmarHaRedeye
▪ LinkedIn
-­‐
ca.linkedin.com/in/torontolawyer
▪ Email
-­‐
Omar@FleetStreetLaw.com
▪ Facebook
-­‐
www.facebook.com/TO.Lawyer