Ontario provincial health privacy law does not pre-empt invasion of privacy claim in tort

The Ontario Superior Court in Hopkins v. Kay, 2014 ONSC 321 (CanLII) has concluded that the Personal Health Information Protection Act does not pre-empt a claim for "intrusion upon seclusion" against a hospital and its employees for unlawfully perusing personal health records:

[29] While it is argued by counsel for the Hospital that Jones dealt with Federal privacy legislation (“PIPEDA”), it is equally clear to me that Sharpe J.A. conducted a review of other similar legislation and specifically referred in his decision to PHIPA. At paragraphs 47-51, however, and again at paragraphs 52-54, there can be no doubt that Sharpe J.A. was well aware of the provisions of PHIPA and the potential impact of recognizing a common law tort of breach of privacy. In dealing with whether or not the legislation had occupied the field, the comments of Justice Sharpe at paragraph 54 are particularly apropos when he states:

Significantly, however, no provincial legislation provides a precise definition of what constitutes an invasion of privacy. The courts and provinces with a statutory tort are left with more or less the same task as courts and provinces without such statutes. The nature of these acts does not indicate that we are faced with a situation where sensitive policy choices and decisions are best left to the legislature. To the contrary, existing provincial legislation indicates that when the legislatures have acted, they have simply proclaimed a sweeping right to privacy and left it to the courts to define the contours of that right.

[30] I am not satisfied from a review of Jones that it should be, as suggested by counsel for the Hospital, restricted to the facts of that case. Rather, I am of the view that the Court of Appeal in Jones has determined that the common law right to proceed with a claim, based on the tort of breach of privacy, as alleged in the plaintiff’s statement of claim is a claim that should be allowed to proceed. This is not a case that, in my view, is so plain and obvious that the court should strike out the claim. If the position of the Hospital is to be sustained, it will require a decision of the Court of Appeal, which as the British Columbia Court of Appeal has done, determines that there is no claim for breach of privacy and that the claim must rest on the provisions of PHIPA. The defendants’ motion is therefore dismissed with costs.

Thanks to Barry Sookman for pointing this case out ...

Breach of privacy case allowed to proceed Hopkins v. Kay, 2014 ONSC 321 (CanLII) http://t.co/PUEQlK73by

— Barry Sookman (@bsookman) February 15, 2014