Hopkins et al. v. Kay et al., 2015 ONCA 112

• Judge: Sharpe, van Rensburg and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Monday December 15, 2014
• Jurisdiction: Ontario
• Citations: 2015 ONCA 112;(2015), 329 O.A.C. 311 (CA)

Hopkins v. Kay (2015), 329 O.A.C. 311 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. FE.009

Jessica Hopkins, Heike Hesse, Erkenraadje Wensvoort on behalf of themselves and all others similarly situated (respondent/plaintiff) v. Andrea Kay, Dana Gildon Cormier, Mandy Edgerton Reid, Dawn Deciocci, Jane Doe "A", Jane Doe "B", Jane Doe "C", Peterborough Regional Health Centreand Sir Sanford Fleming College (appellants/defendants)

(C58403; 2015 ONCA 112)

Indexed As: Hopkins et al. v. Kay et al.

Ontario Court of Appeal

Sharpe, van Rensburg and Pardu, JJ.A.

February 18, 2015.

Summary:

The plaintiff in this proposed class proceeding alleged that her records as a patient at the Peterborough Regional Heath Centre (the "Hospital") were improperly accessed. She based her claim on the common law tort of intrusion upon seclusion, recognized in Jones v. Tsige, 2012 ONCA. The Hospital moved under rule 21 to dismiss the claim on the ground that the Personal Health Information Protection Act (PHIPA) was an exhaustive code that ousted the jurisdiction of the Superior Court to entertain any common law claim for invasion of privacy rights in relation to patient records.

The Ontario Superior Court dismissed the motion. The defendants appealed.

The Ontario Court of Appeal dismissed the appeal. The PHIPA did not create an exhaustive code. The plaintiff was not precluded from asserting a common law claim for intrusion upon seclusion in the Superior Court.

Editor's Note: The plaintiff's motion to quash this appeal on the basis that the order under appeal was interlocutory in nature was dismissed in a decision reported at [2014] O.A.C. Uned. 473.

Practice - Topic 2241

Pleadings - Striking out pleadings - Grounds - Lack of jurisdiction - [See Torts - Topic 5545].

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See Torts - Topic 5545].

Statutes - Topic 5943

Operation and effect - Effect on common law - Codifications - [See Torts - Topic 5545].

Torts - Topic 5545

Invasion of privacy - Accessing, collecting and using personal information - Actions - Common law - The plaintiff in a proposed class proceeding alleged that her records as a patient at the Peterborough Regional Heath Centre (the "Hospital") were improperly accessed - She based her claim on the common law tort of intrusion upon seclusion, recognized in Jones v. Tsige, 2012 ONCA - The Hospital moved under rule 21 to dismiss the claim on the ground that the Personal Health Information Protection Act (PHIPA) was an exhaustive code that ousted the jurisdiction of the Superior Court to entertain any common law claim for invasion of privacy rights in relation to patient records - The Ontario Court of Appeal upheld the dismissal of the rule 21 motion - The PHIPA did not create an exhaustive code - The language of the PHIPA did not imply a legislative intention to create an exhaustive code in relation to personal health information - The PHIPA's highly discretionary review procedure was tailored to deal with systemic issues rather than individual complaints - The court did not agree that allowing individuals to pursue common law claims conflicted with or would undermine the scheme established by the PHIPA - Nor was it satisfied that the review procedure established by the PHIPA ensured that individuals who complained about their privacy in personal health information would have effective redress - There was 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 was no merit to the suggestion that the court should decline to exercise its jurisdiction.

Trade Regulation - Topic 9445

Protection of personal information and electronic documents - Protection, collection or disclosure of personal information - Health information - [See Torts - Topic 5545].

Cases Noticed:

Jones v. Tsige (2012), 287 O.A.C. 56; 108 O.R.(3d) 241; 2012 ONCA 32, consd. [para. 1].

Beiko et al. v. Hotel Dieu Hospital St. Catharines et al., [2007] O.A.C. Uned. 509; 2007 ONCA 860, refd to. [para. 29].

Rasouli v. Sunnybrook Health Sciences Centre et al., [2013] 3 S.C.R. 341; 449 N.R. 313; 2013 SCC 53, refd to. [para. 29].

Pleau v. Canada (Attorney General) et al. (1999), 181 N.S.R.(2d) 356; 560 A.P.R. 356; 182 D.L.R.(4th) 373; 1999 NSCA 159, leave to appeal denied (2000), 262 N.R. 399 (S.C.C.) refd to. [para. 30].

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, dist. [para. 64].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, dist. [para. 66].

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64; 2005 SCC 11, dist. [para. 66].

Mohl v. University of British Columbia (2009), 271 B.C.A.C. 211; 458 W.A.C. 211; 2009 BCCA 249, dist. [para. 70].

Facilities Subsector Bargaining Association et al. v. British Columbia Nurses' Union et al., [2009] B.C.T.C. Uned. 1562; 2009 BCSC 1562, dist. [para. 70].

Macaraeg v. E Care Contact Centers Ltd. (2008), 255 B.C.A.C. 126; 430 W.A.C. 126; 2008 BCCA 182, dist. [para. 72].

Martin v. General Teamsters, Local Union No. 362, [2011] A.R. Uned. 484; 2011 ABQB 412, dist. [para. 72].

Statutes Noticed:

Personal Health Information Protection Act, S.O. 2004, c. 3, Schedule A, sect. 1 [para. 13]; sect. 56, sect. 57(1) [para. 18]; sect. 57(3), sect. 57(4) [para. 19]; sect. 58 [para. 20]; sect. 59, sect. 60, sect. 61, sect. 62 [para. 21]; sect. 63 [para. 22]; sect. 65 [para. 23]; sect. 66 [para. 24]; sect, 71 [para. 25]; sect. 72 [para. 26].

Authors and Works Noticed:

Information and Privacy Commissioner/ Ontario, Commissioner's PHIPA Highlights (2005), generally [para. 35].

Krever, Horace, Krever's Report of the Commission of Inquiry into the Confidentiality of Health Information in Ontario (1980), generally [para. 12].

Sullivan, Ruth, Sullivan on the Construction of Statutes (6th Ed. 2014), paras. 17.20, 17.34 [para. 29].

Counsel:

Patrick J. Hawkins and Daniel Girlando, for the appellant, Peterborough Regional Health Centre;

Jonathan C. Lisus and Ian C. Matthews, for the appellant, Mandy Edgerton-Reid;

Jean-Marc Leclerc, Michael A. Crystal and Norman Mizobuchi, for the respondent;

Daniel Michaluk and Mitchell Smith, for the intervener, Ontario Hospital Association;

Linda Rothstein and Jodi Martin, for the intervener, The Information and Privacy Commissioner of Ontario.

This appeal was heard on December 15, 2014, before Sharpe, van Rensburg and Pardu, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Sharpe, J.A., and was released on February 18, 2015.