class action intrusions: helping to develop privacy rights, or an overkill in liability?

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)

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.

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).

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.

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.

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.

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.

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.

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.

Tort of Intrusion upon Seclusion, cont’d

Damages: ■  Not required to demonstrate actual harm. ■  Maximum award generally limited to $20,000.

General Reac(ons from the Bar

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)]

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

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.

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)

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?

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.

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

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

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.

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

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.

Conclusions

■  Can the alternatives be strengthened? ■  Overhaul of failing privacy and health legislation §  e-‐PHIPA (Bill 78)

■  Reassess disciplinary measures for privacy breaches

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.

Thank You For Listening!

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