Hemeon et al. v. South West Nova District Health Authority, (2015) 366 N.S.R.(2d) 91 (SC)

• Judge: Pickup, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 24, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 366 N.S.R.(2d) 91 (SC);2015 NSSC 287

Hemeon v. Health Authority (2015), 366 N.S.R.(2d) 91 (SC);

    1154 A.P.R. 91

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. OC.031

Alicia Hemeon and Willa Magee (plaintiffs) v. South West Nova District Health Authority, a body corporate (defendant)

(Hfx. No. 398067; 2015 NSSC 287)

Indexed As: Hemeon et al. v. South West Nova District Health Authority

Nova Scotia Supreme Court

Pickup, J.

October 14, 2015.

Summary:

The plaintiffs' class action alleged that an employee of the defendant committed the tort of "intrusion upon seclusion" by accessing medical records without authorization and that the defendant was vicariously liable. Six issues were certified. In discovery, the plaintiff Hemeon stated that she had changed to another hospital after the alleged privacy breach. The defendant asked for production of medical records to confirm that answer. Hemeon refused. The defendant moved for an order requiring production.

The Nova Scotia Supreme Court denied the motion.

Practice - Topic 210.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - General (incl. venue, discovery, etc.) - The Nova Scotia Supreme Court discussed discovery and disclosure in class action proceedings, concluding that the appropriate approach was to follow the general rule that discovery was generally tied to the common issues - See paragraphs 5 to 18.

Practice - Topic 210.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - General (incl. venue, discovery, etc.) - The plaintiffs' class action alleged that an employee of the defendant committed the tort of "intrusion upon seclusion" by accessing medical records without authorization and that the defendant was vicariously liable - Six issues were certified - In discovery, the plaintiff Hemeon stated that she had changed to another hospital after the alleged privacy breach - The defendant asked for production of medical records to confirm that answer - Hemeon refused - The defendant moved for an order requiring production - The Nova Scotia Supreme Court denied the motion - The court rejected the defendant's argument that the records were necessary because the court required a factual record if it decided to interpret the tort of intrusion upon seclusion as requiring the element of "anguish and suffering" - Determining the elements of the tort would not require such disclosure at this stage, but would essentially be a policy decision - How the subjective experience of a single representative plaintiff influenced that decision was not clear - See paragraphs 19 to 26.

Practice - Topic 210.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - General (incl. venue, discovery, etc.) - The plaintiffs' class action alleged that an employee of the defendant committed the tort of "intrusion upon seclusion" by accessing medical records without authorization and that the defendant was vicariously liable - Six issues were certified - In discovery, the plaintiff Hemeon stated that she had changed to another hospital after the alleged privacy breach - The defendant asked for production of medical records to confirm that answer - Hemeon refused - The defendant moved for an order requiring production - The Nova Scotia Supreme Court denied the motion - The court rejected the defendant's argument that the records were relevant to the common issue of whether damages could be assessed in the aggregate - The defendant offered no clear explanation for the claim that Hemeon's individual distress was relevant to this issue - See paragraphs 27 to 29.

Practice - Topic 210.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - General (incl. venue, discovery, etc.) - The plaintiffs' class action alleged that an employee of the defendant committed the tort of "intrusion upon seclusion" by accessing medical records without authorization and that the defendant was vicariously liable - Six issues were certified - In discovery, the plaintiff Hemeon stated that she had changed to another hospital after the alleged privacy breach - The defendant asked for production of medical records to confirm that answer - Hemeon refused - The defendant moved for an order requiring production - The Nova Scotia Supreme Court denied the motion - The court rejected the defendant's argument that the records were relevant because a reference to distress arising from the breaches appeared in the litigation plan - The reference in the litigation plan did not displace the basic principle that Hemeon's individual distress was of no apparent relevance to the common issues - See paragraphs 30 to 34.

Practice - Topic 4573

Discovery - What documents must be produced - Documents related to or relevant and material to matters in issue - [See second, third and fourth Practice - Topic 210.1 ].

Cases Noticed:

1176560 Ontario Ltd. et al. v. Great Atlantic & Pacific Co. of Canada Ltd., [2003] O.T.C. Uned. B61 (Sup. Ct. Master), refd to. [para. 8].

T.L. et al. v. Director of Child Welfare (Alta.) et al. (2010), 492 A.R. 394; 2010 ABQB 203, refd to. [para. 9].

Abdulrahim et al. v. Air France et al., [2010] O.T.C. Uned. 3953; 2010 ONSC 3953, refd to. [para. 10].

Fischer v. IG Investment Management Ltd., 2015 ONSC 3535, refd to. [para. 13].

Stanway v. Wyeth Canada Inc. et al., [2013] B.C.T.C. Uned. 369; 2013 BCSC 369, leave to appeal denied (2013), 339 B.C.A.C. 23; 578 W.A.C. 23; 2013 BCCA 256, refd to. [para. 15].

Jones v. Tsige (2012), 287 O.A.C. 56; 2012 ONCA 32, refd to. [para. 19].

Evans v. Wilson, 2014 ONSC 2135, refd to. [para. 20].

Trout Point Lodge Ltd. et al. v. Handshoe et al. (2012), 320 N.S.R.(2d) 22; 1014 A.P.R. 22; 2012 NSSC 245, refd to. [para. 22].

Murray v. Capital District Health Authority (2015), 356 N.S.R.(2d) 239; 1126 A.P.R. 239; 2015 NSSC 61, refd to. [para. 22].

Pennyfeather v. Timminco Ltd. et al., [2011] O.T.C. Uned. 4257; 2011 ONSC 4257, refd to. [para. 30].

Authors and Works Noticed:

Prosser, Law of Torts (4th Ed. 1971), generally [para. 23].

Winkler, Warren K., Perell, Paul M., and Kalajdzik, Jasminka, The Law of Class Actions in Canada (2014), p. 192 [para. 14].

Counsel:

Michael Dull and Madeleine Carter, for the plaintiffs;

Nancy G. Rubin, Q.C., Scott Campbell and Gavin Johnston (Articled Clerk), for the defendant.

This motion was heard at Halifax, N.S., on July 24, 2015, by Pickup, J., of the Nova Scotia Supreme Court, who delivered the following judgment on October 14, 2015.