Breach of Privacy (Tort)

Abernethy v. Ontario, 2017 ONCA 340 (CanLII)

[15] The motion judge took a different approach with respect to Ms. Santone. Taking a generous view of the pleading, in favour of Ms. Abernethy, he concluded that there may be a basis for a claim based of the tort of breach of privacy: see Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241. He therefore granted her leave to amend her pleading to allege that tort, specifically providing, however, that the amendment permitted was not to relate to the claims for misfeasance in public office, conspiracy, obstruction of justice or claims based upon specific legislation that does not apply to the claim in tort for breach of privacy.

[16] Ms. Abernethy appeals from this decision, too, making the same arguments with respect to the broader claims and submitting as well that having to pursue the breach of privacy claim, which lies against Ms. Santone alone, deprives her of her ability to pursue the other defendants on the basis of conspiracy. She submits that her damages cannot be fully appreciated in isolation from the conspiratorial actions of the others.

[17] For the reasons set out above, however, we see no basis for interfering with the motion judge’s findings and conclusions with respect to the array of broader claims put forward by Ms. Abernethy. The motion judge granted her leave to amend to pursue a breach of privacy claim against Ms. Santone and that matter will proceed as he directed.

Hopkins v. Kay, 2015 ONCA 112 (CanLII)

[71] In my view, these decisions do not assist the appellants. The provincial privacy legislation in British Columbia and Alberta establishes a statutory cause of action for breach of privacy. As described in Jones v. Tsige, at para. 54, courts in these jurisdictions are left to define the contours of the statutory right to privacy within the parameters of that legislation. In contrast, there is no general statutory cause of action for breach of privacy in Ontario. The respondent’s claim is not based upon a breach of PHIPA, but on a distinct common law tort. The wrong contemplated by the common law tort of intrusion upon seclusion differs in its essential character from a claim that a statutory provision has been breached.

[72] Other cases cited by the appellants, including Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182, 255 B.C.A.C. 126, Martin v. General Teamsters, Local Union No. 362, 2011 ABQB 412, and Beiko, are distinguishable on the same grounds. In each of these cases, the plaintiffs’ claims depended on an underlying benefit or obligation conferred by a statute. The statutes at issue provided for specific complaint procedures, which had not been followed. Therefore, the plaintiffs were precluded from pursuing a common law remedy at first instance. As the respondent in this case does not need to rely on PHIPA to prove her claim, these decisions are not applicable to the issue at hand.

CONCLUSION

[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.