Ontario health privacy law doesn't preclude class actions for intrusion upon seclusion claims

The Ontario Court of Appeal in Hopkins v. Kay, 2015 ONCA 112 (CanLII) has just ruled that the Personal Health Information Protection Act (PHIPA) doesn't preclude common law claims for intrusion upon seclusion. In the decision under appeal, The motion judge held that it was not plain and obvious that the claim based on Jones v. Tsige could not succeed. He noted that the existence of PHIPA and other privacy legislation had been brought to the appeal court’s attention in Jones v. Tsige and refused to strike the claim under Rule 21.

It was argued by the appellants that PHIPA creates an exhaustive code that ousts common law torts, such as intrusion upon seclusion. The Court of Appeal did not agree:

[30] An intention to create an exhaustive code may be expressly stated in the legislation or it may be implied. As there is nothing explicit in PHIPA dealing with exclusivity, the question is whether an intent to exclude courts’ jurisdiction should be implied. In Pleau v. Canada (A.G.), 1999 NSCA 159 (CanLII), 182 D.L.R. (4th) 373, leave to appeal refused, [2000] S.C.C.A. No. 83, Cromwell J.A. explained, at para. 48: “Absent words clear enough to oust court jurisdiction as a matter of law, the question is whether the court should infer… that the alternate process was intended to be the exclusive means of resolving the dispute.”

[31] Cromwell J.A. identified three factors that a court should consider when discerning whether there is a legislative intent to confer exclusive jurisdiction. First, a court is to consider “the process for dispute resolution established by the legislation” and ask whether the language is “consistent with exclusive jurisdiction”. Courts should look at “the presence or absence of privative clauses and the relationship between the dispute resolution process and the overall legislative scheme”: Pleau, at para. 50 (emphasis in original).

[32] Second, a court should consider “the nature of the dispute and its relation to the rights and obligations created by the overall scheme of the legislation”. The court is to assess “the essential character” of the dispute and “the extent to which it is, in substance, regulated by the legislative… scheme and the extent to which the court’s assumption of jurisdiction would be consistent or inconsistent with that scheme”: Pleau, at para. 51 (emphasis in original).

[33] The third consideration is “the capacity of the scheme to afford effective redress” by addressing the concern that “where there is a right, there ought to be a remedy”: Pleau, at para. 52 (emphasis in original).

With respect to the first criterion, the court said:

[45] I conclude that PHIPA provides an informal and highly discretionary review process that is not tailored to deal with individual claims, and it expressly contemplates the possibility of other proceedings.

For the second criterion:

[52] The above comparison leads me to conclude that allowing actions based on Jones v. Tsige to proceed in the courts would not undermine the PHIPA scheme. The elements of the common law cause of action are, on balance, more difficult to establish than a breach of PHIPA, and therefore it cannot be said that a plaintiff, by launching a common law action, is “circumventing” any substantive provision of PHIPA. The aspects of the common law that may at first glance appear more lenient are not, upon closer consideration, significantly advantageous.

[53] Allowing common law actions to proceed in the courts would, however, allow plaintiffs to avoid PHIPA’s complaint procedure, and I now turn to the issue of whether that procedure is sufficient to ensure effective redress.

And thirdly:

[61] It was suggested in oral argument that an individual complainant could always ask the Attorney General to launch a prosecution pursuant to s. 72 and then use the conviction as a basis for claiming damages under s. 65(2). I am not persuaded that this argument alleviates the problem. First, it would subject the individual complainant to yet another discretionary hurdle. Second, it is hardly a persuasive argument supporting the exclusivity of the PHIPA process to say that individuals can obtain redress by resorting to the courts by way of a prosecution.

And in the result:

[73] For these reasons, I conclude that the language of PHIPA does not imply a legislative intention to create an exhaustive code in relation to personal health information. PHIPA expressly contemplates other proceedings in relation to personal health information. PHIPA’s highly discretionary review procedure is tailored to deal with systemic issues rather than individual complaints. Given the nature of the elements of the common law action, I do not agree that allowing individuals to pursue common law claims conflicts with or would undermine the scheme established by PHIPA, nor am I satisfied that the review procedure established by PHIPA ensures that individuals who complain about their privacy in personal health information will have effective redress. There is no basis to exclude the jurisdiction of the Superior Court from entertaining a common law claim for breach of privacy and, given the absence of an effective dispute resolution procedure, there is no merit to the suggestion that the court should decline to exercise its jurisdiction.