by Written on behalf of Wise Health Law August 30, 2019 4 min read

Introduction

The Ontario Court of Appeal (ONCA) released its groundbreaking decision of Jones v. Tsige in 2012. The common law in Ontario for the very first time recognized the right to bring a civil action for damages for an invasion of personal privacy, or intrusion upon seclusion. Until then it was unclear if the law did recognize such a cause of action.

Elements of the Tort

The ONCA set out the elements of the new privacy tort as follows:

I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.

The court also set some limitations to the action, in an attempt to reign in unreasonable causes of action:

These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one's financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.

A Recent Update

The Superior Court of Justice (ONSC) had to deal with the tort in Broutzas v. Rouge Valley Health System (2018). The decision combined two actions seeking the certification of class actions against two hospitals, three of their employees, and several investment dealers. The employees had, in violation of their employment contracts and the Personal Health Information Protection Act, obtained the contact information concerning patients who had recently given birth at one of the two defendant hospitals. One employee used the information to solicit sales of Registered Education Savings Plans (RESP) from the patients. The other employees sold the information to investment dealers who then solicited the patients for the same purpose. No confidential health information was disclosed or used, only the contact information. The plaintiffs were the parents contacted and sought to rely on the privacy tort as one of their causes of action.

The Result

The ONSC dismissed this particular claim as follows:

It is plain and obvious in the case at bar that there is no tenable cause of action for intrusion on seclusion because there was no significant invasion of personal privacy and a reasonable person would not find the disclosure of contact information without the disclosure of medical, financial, or sensitive information, offensive or a cause for distress humiliation and anguish. The contact information that was the objective of the intrusion in the immediate case was not private, there was not a significant invasion of privacy, and the invasion of privacy was not highly offensive to an objective person.

Generally speaking, there is no privacy in information in the public domain, and there is no reasonable expectation in contact information, which is in the public domain, being a private matter. Contact information is publicly available and is routinely and readily disclosed to strangers to confirm one’s identification, age, or address. People readily disclose their address and phone number to bank and store clerks, when booking train or plane tickets or when ordering a taxi or food delivery. Many people use their health cards for identification purposes. Save during the first trimester, the state of pregnancy, and the birth of child is rarely a purely private matter. The news of an anticipated birth and of a birth is typically shared and celebrated with family, friends, and colleagues and is often publicized. The case at bar is illustrative. All the proposed representative plaintiffs were not shy about sharing the news of the newborns.

Takeaways

The decision is a welcome clarification on the scope of the tort of intrusion upon seclusion. It tells us that not all information in a patient's medical chart is covered by the tort. Where information is publicly available, and usually shared with others, both of which occurred here, the tort does not attach. This was so despite the access being in contravention of several contracts as well as privacy legislation.

The lawyers at Wise Health Law, are passionate about helping health professionals and healthcare organizations understand their legal obligations with respect to patient privacy. We monitor trends and developments in the health sector so that we can provide consistently forward-thinking legal advice and risk management guidance to all of our clients. Our lawyers have significant trial and appellate experience and will skillfully represent clients whenever litigation is required. Contact us online, or at 416-915-4234 for a consultation.



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