The Ontario Small Claims Court, in Halley v McCann, 2016 CanLII 58945 (ON SCSM), has recently awarded a plaintiff $9,000 in damages for breach of privacy. The case arose because the defendant disclosed the fact that the plaintiff had admitted herself to a mental health facility. The defendant is also the half-sister of the plaintiff. It was alleged that the defendant had told three people outside the facility about the plaintiff's stay there. No other information was disclosed.
10. The plaintiff left the crisis facility after a 6 day stay feeling much better and in control. Unfortunately this did not last. A week after returning home she was sitting on the front porch of Dean’s home when Lisa, Fabion’s former common law spouse, arrived. Upon seeing the plaintiff, Dean recalls that Lisa “blurted out ‘Were you in a crisis house?’ not even saying Hello first”. The plaintiff was visibly upset and shaken by the question and asked how she knew. Lisa said Fabion told her about the stay.
12. In the opinion of the plaintiff’s family doctor, filed as Exhibit 5, the plaintiff has “definitely” become more stressed, anxious and depressed since finding out that others were told of her stay in the crisis facility. It may also be contributing to her increased back pain.
13. Both the plaintiff and her boyfriend Dean report that she has become more fragile, anxious and reclusive than before the incident. Unlike before she rarely goes out, will not go shopping and has blackened the windows of her basement apartment. She will not seek respite care help even from other facilities because she fears treatment would likely come to the attention of the defendant through the network of caregivers.
The Court noted that two invasion of privacy torts exist in Ontario:
19. In sum, there are two recognized invasion of privacy torts in Ontario; neither requires proof of pecuniary loss or harm to an economic interest. Aggravated and punitive damages may be awarded and an award should serve as a deterrent to others.
20. These two common law torts exist in addition to the statutory right or cause of action available to a plaintiff under the privacy legislation. The Personal Health Information Protection Act, 2004 S.O. c. 3, Sch A, s. 65 (PHIPA) contemplates mental anguish damages for breaches of statutory duty up to a maximum of $10,000. In Hopkins v. Kay 2015 ONCA 112 (CanLII) (paras 44-45, 73) the Ontario Court of Appeal considered whether the complaints process available under PHIPA displaces the common law authority of the courts to award damages for breach of the statutory duty and found that the legislation is not intended to be an exhaustive or comprehensive compensatory scheme. The complaints process is more suited to systemic breaches and an individual victim retains the right to bring a civil court action for damages.
The Court made a number of conclusions that are worth noting:
27. I disagree for at least four reasons. First, personal health information includes information about the providing of health care (s. 4(1)(b) PHIPA), not just the details of diagnosis or treatment. The defendant’s disclosure told others that the crisis facility was providing health care to the plaintiff. “Visits” to the facility are expressly listed on the consent form as “confidential and/or personal health information”. I agree with the opinion of the crisis facility director; the staff and facility are under a statutory and contractual duty to keep the provision of care private.
28. Second, the names associated with the facility – Crisis Respite and Homes for Mental Health – provide some information about the mental health status or condition of the individuals who seek treatment there. Therefore the disclosure went beyond just the providing of care but gave some indication of the nature of the condition being treated. This health information was also required to be kept private.
29. Third, the plaintiff considered this a “private matter” – she did not tell anyone in her family and signed consents limiting the access to information to only two people. The defendant saw the file, and Dean’s name on the paperwork. “Visits” to the facility are expressly listed on the consent form as “confidential and/or personal health information”. The defendant knew or should have known that this was a private matter and it was a secret to be kept from other family members. In her evidence and counsel submissions, the defendant acknowledges the private nature of the stay when she submits that she did everything she could to protect the plaintiff’s privacy during her shift. She claims to have sought advice, stopped reading the file, remained out of sight and gave away her other shifts, all out of respect for the plaintiff’s privacy. These actions show that prior to disclosure she knew the stay was a private matter to be held in confidence.
The Court took judicial notice that mental health issues are particularly stigmatized and concluded that the disclosure of this information is highly offensive to a reasonable person: "I have no trouble finding that a reasonable person would find disclosure of their need for crisis mental health treatment to be highly offensive."
The Court also found malice:
39. I have already found that the disclosures were made intentionally and not for advice, support or concern. The defendant denies that they were done with malice but on the facts I am prepared to infer that the disclosures were done with malice, particularly that to the brother. They were intended to diminish the plaintiff in the eyes of her family and cause her embarrassment. I emphasize the brother because I suspect the defendant’s daughter and husband had already had their opinion of the plaintiff shaped by the defendant. However, the brother appeared to be trying to walk a middle ground between the two feuding sisters. The defendant seemed engaged in some kind of competition for her brother’s attention as evidenced when she races to be the first to invite him to Christmas dinner, calling the plaintiff “crazy” as she did so. This subsequent conduct along with her failure to apologize, confirms malice.
On the topic of damages, the Defendant argued that it was a case for nominal damages of around $300. The Court strongly disagreed:
42. I disagree. Actual emotional harm was suffered by the plaintiff. The doctor’s opinion confirms the worsening of her mental health condition following the public disclosure. In submissions during closing, the defendant asks me to disregard the general practitioner’s opinion but did not summons or cross examine the doctor’s opinion nor supply contrary medical expert evidence. Therefore, I accept the opinion of the plaintiff’s doctor as to the plaintiff’s worsened anxiety and depression. It is the only medical expert evidence submitted at trial and was not contradicted.
43. As to the claim that the plaintiff’s reaction is extreme and unusual, again I disagree. It is completely reasonable and foreseeable that the mental health of a patient already suffering from anxiety will deteriorate when someone releases mental health information about them. Unlike Mustapha the withdrawal of the plaintiff is not an extreme, unpredictable or unusual reaction – it is completely reasonable and foreseeable. This is an obvious situation of “take your victim as you find them” – mental fragility was not an unknown or hidden condition which the defendant could not have foreseen. The defendant knew the mental health status of the plaintiff before she committed the wrongful act and therefore she must take her victim as she found her and (I would add) as she knew her to be.
44. Finally, the defendant argues that the failure to subsequently seek treatment at other facilities is a failure to mitigate which goes to reduce her damage award. The failure to seek in-patient treatment is completely predictable in the circumstances and is a by-product of the defendant’s humiliation and embarrassment of the plaintiff. The defendant’s actions have made it more difficult for the plaintiff to seek treatment as she no longer trusts institutional care. She is still privately seeing her family doctor for out-patient care as the doctor’s opinion verifies. Failure to seek in-patient treatment is a symptom evidencing the worsening of the plaintiff’s condition. Prior to the disclosure the plaintiff was willing to seek in-patient treatment, after she was not. In sum the severity of her anxiety and depression is worsened, she rarely leaves her darkened apartment and her quality of life is severely reduced.
45. This is not a case for nominal damages. It properly falls within the range set for non-pecuniary damages in Jones. The summary of past damage awards contained in Appendix A & B of Jones offers a context for setting damages in this case. The documented psychological harm suffered takes the damages well beyond nominal amounts for embarrassment and humiliation while the limited number of people told and the temporary manner of communication (telephone rather than internet) go to contain the award. I award $7,500 for general damages.
The Court then awarded an additional $1500 in punitive damages.