Intrusion Upon Seclusion

One of the more recent torts that has been developing is the tort of intrusion upon seclusion.  The Court of Appeal recently commented on this developing tort. 

In Hopkins v. Kay, 2015 ONCA 112 (C.A.), the plaintiffs brought a proposed class action alleging that their records as patients of the Peterborough Regional Health Centre were improperly accessed.

The hospital brought a r. 21 motion to dismiss the claim on the ground that the Personal Health Information Protection Act ("PHIPA") is an exhaustive code that ousts the jurisdiction of the Superior Court to entertain any common law claim for invasion of privacy rights in relation to patient records.  The motions judge dismissed the motion and the hospital appealed.

The Court of Appeal held that PHIPA is not an exhaustive code, and the plaintiffs were not precluded from asserting a common law claim for intrusion upon seclusion.  There is no express intention in PHIPA to create an exhaustive code and it contemplates other proceedings.  The commissioner has no power to award damages so an individual must commence an action in the Superior Court to seek damages.  PHIPA is tailored to deal with systemic issues rather than individual complaints. 

The Court of Appeal dismissed the appeal.