Talk on December 4, 2014

1. NewTort of Intrusion
UponSeclusion and
Electronic Health
Records
Omar Ha-Redeye
AAS, BHA (Hons.), PGCert, J.D., LLM(c)
CNMT, RT(N)(ARRT)

2. TheConcept
of Privacy
Changes
overTIme
“Privacy is a protean concept,
and the difficult issue is where
the “reasonableness” line
should be drawn.
 Justice Binnie stated in R. v.
Tessling ” [2004] 3 SCR 432 at
para 25

3. Importance
of Privacy in
Health
Services
 importance of patient privacy directly
related to the concept of patient dignity
 allows for broader societal benefits
including research and public health
activities
 Without protecting privacy, individuals
would be far less likely to participate in
the health care system
 may withhold important information from
health services providers
 inaccurate or incomplete diagnoses
 could result in delays
 apprehension over confidentiality could
affect tax payers

4. Jones v Tsige,
2012ONCA
32
 Court reviewed PIPEDA, PHIPA,
FIPPA MFIPPA, Consumer Reporting
Act
 Statutory law in Canada insufficient
 Focus on employer
 Insufficient damages
 American Restatement used to
define intrusion upon seclusion
 American Common law developed
four different types of torts for
breach of privacy

5. Intrusion
Upon
Seclusion
Elements of this cause of action:
 The defendant’s conduct must be
intentional, including recklessness
 The defendant must have invaded,
without lawful justification, the
plaintiff’s private affairs or concerns
 A reasonable person would regard
the invasion as highly offensive,
causing distress, humiliation, or
anguish

6. Intrusion
Upon
Seclusion
(cont’d)
Privacy interests affected by
intrusion upon seclusion:
 Financial or health records
 Sexual practices and
orientation
 Employment
 Diary or private
correspondence that could be
reasonably considered highly
offensive

7. Technology
Poses a
NovelThreat
to Privacy
 [67] ….The internet and digital
technology have brought an
enormous change in the way we
communicate and in our capacity to
capture, store and retrieve
information.
… Sensitive information as to our
health is similarly available…
 [68] …Technological change poses a
novel threat to a right of privacy that
has been protected for hundreds of
years by the common law ...

8. WhySTIs are
So Important
SexuallyTransmitted
Infections (STIs) are a highly
stigmatized medical condition
 Doesn’t matter how serious it
actually is
 STIs attract special privacy
considerations
 relate to two of the different
types of privacy interests in
Jones
 health records
 sexual practices

9. Special
Treatment of
Information -
STIs
Perceptions change over time
R. v. Cuerrier, [1998] 2 SCR 371
 Knowingly exposing others to HIV through
unprotected sex without disclosure could be
constituted as assault or sexual assault vitiated
by fraud under s. 265(3)(c) of the Criminal Code
R. v. Aziga, 2011 ONSC 4592
 Traumatic nature of non-disclosure of HIV status
R. v. Mabior, 2012 SCC 47
 Shift in position; HIV transmission is lowered
significantly with antiretroviral drugs

10. Anonymization
 Do not need to demonstrate actual
harm, simply “distress, humiliation, or
anguish.”
 many individuals do not necessarily disclose
their HIV status to family members or
friends
 do not appear to be even required to
disclose by law to their sexual partners
 anonymization routinely done for public
health tracking purposes would also
appear to be a proper disclosure
 However, a patient may feel as if their
solitude is violated even if their
information is anonymized
 disclosure occurs without their consent

11. Employment
Law and
Vicarious
Liability
 Analysis of PIPEDA in Jones
 Company policies may protect employers from
vicarious liability
 employee acted explicitly against the employer’s
policies and instructions and was acting as a “rogue
employee.”
 R. v. Dyment, [1988] 2 SCR 417
 Physician obtained blood sample from unconscious
person for emergency purposes without patient’s
knowledge or consent, discovered alcohol and
medication present in the blood, and handed that
information over to the law enforcement, used to
convict patient for driving under the influence

12. PrivacyClass
Actions Pre-
Jones
Cole v. Prairie Centre CreditUnion Ltd.,
2007 SKQB 330
 Communication of confidential information
disposed in a landfill
 Unsuccessful claim emotional distress and
economic loss
Jackson v. Canada, [2006] O.J. No. 3737
(ON CA)
 Document of correctional facility employee
addresses circulated among the prison
population
 Judge described rapidly evolving nature of
privacy law

13. Class
Action
Intrusions
–After
Jones
Condon v. Canada, [2013] F.C.J. No. 1402; [2014]
F.C.J. No. 297
 Loss of external hard drive containing information of
583,000 Canadian Student Loan Program participants
 information was disclosed in an unlawful way and not
disposed of as required by statute
Evans v.The Bank of Nova Scotia, 2014 ONSC 2135
 Mortgage administration officer deliberately provided
sensitive financial information to girlfriend
 Then provided to third-parties and used for improper
and fraudulent purposes
 class action was preferred approach because of the
modest amount of recovery

14. Health
Records
Class
Actions
Hopkins v. Kay, 2014 ONSC 321
 280 patient records accessed and
disseminated to third parties without the
patients’ consent
 intrusion upon seclusion does not require
proof of actual harm, while PHIPA does
 modest damages with the tort are still
higher than what the statute provides.
RougeValley Privacy Breach
 a claim for $412 million against a hospital
for two employees who sold patient
information to a private Registered
Education Savings Plan

15. Conclusions
 health facilities should review and
adopt best practices in data
security
 appropriate policies, training,
education of employees, and
controls
 relatively low amount of damages
suggests intrusion upon seclusion
is unlikely to appear as the basis
for a claim by itself
 normally be combined with other
heads of damages to advance a
claim.

16. Conclusions
(con’t)
 modest damages also makes it
more appealing for to proceed on
a class action basis
 this poses the most significant risk
of liability for the new tort.
 Class actions may ultimately be
the process in which intrusion
upon seclusion is utilized the most
 could foster greater privacy
compliance and better security
measures around patient
information in health facilities

17. Closing
Thank you for your
attention
Contact:
Omar@FleetStreetLaw.com