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Infringement of Privacy Tort

. Jones v Tsige

The start of privacy infringement as a tort is with the 2012 ruling of the Ontario Court of Appeal in Jones v Tsige (Ont CA, 2012). Most of the 100-para ruling is relevant, but they are divided as follows:
15-38 Prior case law
39-46 Charter law
47-54 Privacy legislation
55-64 Foreign jurisdictions
65-73 'Defining the tort of intrusion upon seclusion'
74-88 Damages
. Ludmer v Ludmer

In Ludmer v Ludmer (Ont CA, 2014) the Court of Appeal commented as follows on the tort of invasion of privacy:
[47] This Court has recognized the tort of invasion of privacy – sometimes referred to as “intrusion upon seclusion” – in Jones v. Tsige, 2012 ONCA 32 (CanLII), 346 D.L.R. (4th) 34. Sharpe J.A. identified the elements of the cause of action at para. 71 of his reasons:
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.
[48] In this respect, he adopted, at para. 70 of his reasons, the essential elements of the action for intrusion upon seclusion from the Restatement (Second) of Torts § 652B (2010), which states:
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 the other person.
[49] The trial judge correctly identified the elements of the cause of action and he found as a fact (a) that Mr. Spira had neither “hacked into” nor had access to Mr. Ludmer’s email account; (b) that Mr. Spira had never, himself, intercepted any of Mr. Ludmer’s emails; and (c) that Mr. Spira had never read any of the emails. The trial judge concluded that the simple fact that Mr. Spira had forwarded certain of these emails to Ms. Ludmer’s lawyer at her request was not sufficient to ground a claim for invasion of privacy. He found that it was Ms. Ludmer, not Mr. Spira, who had intentionally intruded upon Mr. Ludmer’s private affairs, and that whatever assistance Mr. Spira provided was not for purpose of assisting in her intrusion upon those private affairs.
. Hopkins v Kay

In Hopkins v Kay (Ont CA, 2015) the Court of Appeal considers whether the PHIPA (Personal Health Information Protection Act) scheme excludes the common law tort of invasion of privacy:
(i) Did the legislature intend to create an exhaustive code?

[29] Ruth Sullivan, in Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014), at para. 17.20, explains the characteristics of an exhaustive code as follows: “The key feature of a code is that it is meant to offer an exclusive account of the law in an area; it occupies the field in that area, displacing existing common law rules and cutting off further common law evolution.” She notes, at para. 17.34, that “if legislation constitutes a complete code, resort to the common law is impermissible.” See also Beiko v. Hotel Dieu Hospital St. Catherines, 2007 ONCA 860 (CanLII), at para. 4; Cuthbertson v. Rasoulli, 2013 SCC 53 (CanLII), [2013] 3 S.C.R. 341, at paras. 2-4. If PHIPA does constitute an exhaustive code, the court has no jurisdiction to entertain the claim advanced by the respondent and it must be struck.

[30] An intention to create an exhaustive code may be expressly stated in the legislation or it may be implied. As there is nothing explicit in PHIPA dealing with exclusivity, the question is whether an intent to exclude courts’ jurisdiction should be implied. In Pleau v. Canada (A.G.), 1999 NSCA 159 (CanLII), 182 D.L.R. (4th) 373, leave to appeal refused, [2000] S.C.C.A. No. 83, Cromwell J.A. explained, at para. 48: “Absent words clear enough to oust court jurisdiction as a matter of law, the question is whether the court should infer… that the alternate process was intended to be the exclusive means of resolving the dispute.”

[31] Cromwell J.A. identified three factors that a court should consider when discerning whether there is a legislative intent to confer exclusive jurisdiction. First, a court is to consider “the process for dispute resolution established by the legislation” and ask whether the language is “consistent with exclusive jurisdiction”. Courts should look at “the presence or absence of privative clauses and the relationship between the dispute resolution process and the overall legislative scheme”: Pleau, at para. 50 (emphasis in original).

[32] Second, a court should consider “the nature of the dispute and its relation to the rights and obligations created by the overall scheme of the legislation”. The court is to assess “the essential character” of the dispute and “the extent to which it is, in substance, regulated by the legislative… scheme and the extent to which the court’s assumption of jurisdiction would be consistent or inconsistent with that scheme”: Pleau, at para. 51 (emphasis in original).

[33] The third consideration is “the capacity of the scheme to afford effective redress” by addressing the concern that “where there is a right, there ought to be a remedy”: Pleau, at para. 52 (emphasis in original).

[34] These three factors provide a useful framework for considering the question posed on this appeal.

(a) The language of PHIPA and the process it establishes

[35] There can be no doubt that PHIPA lays down an elaborate and detailed set of rules and standards to be followed by custodians of personal health information. I accept former Commissioner Ann Cavoukian’s description of PHIPA as a “comprehensive set of rules about the manner in which personal health information may be collected, used, or disclosed across Ontario’s health care system”: Commissioner’s PHIPA Highlights (Toronto: Information and Privacy Commissioner/Ontario, March 2005).

[36] PHIPA also includes among its purposes the “independent review and resolution of complaints with respect to personal health information” and the provision of “effective remedies for contraventions” of the Act. The Act gives the Commissioner certain powers in this regard.

[37] While PHIPA does contain a very exhaustive set of rules and standards for custodians of personal health information, details regarding the procedure or mechanism for the resolution of disputes are sparse. At para. 28 of the Commissioner’s factum, the review process is described as “inquisitorial in nature”. The Act essentially leaves the procedure to be followed to the discretion of the Commissioner. Reviews are generally conducted in writing. There is no requirement to hold an oral hearing, and therefore the fundamental features of an adversarial system, such as cross-examination, are absent. The Act gives complainants no procedural entitlements beyond the right to make representations. Pursuant to s. 59(1) of the Act, the usual procedural rights pertaining to administrative hearings granted by the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, do not apply.

[38] The nature of the process established by PHIPA indicates that it was designed to facilitate the Commissioner’s investigation into systemic issues. While that process can be triggered by an individual complaint, the procedure is not designed for the resolution of all individual complaints. This coincides with the Commissioner’s policy, discussed in greater detail below, to give priority to complaints raising systemic issues.

[39] I now turn to the specific language of the Act. Section 57(4)(b) provides that one of the factors to be considered by the Commissioner when deciding whether or not to investigate a complaint is whether “the complaint has been or could be more appropriately dealt with, initially or completely, by means of a procedure, other than a complaint under this Act.” On its face, s. 57(4)(b) specifically contemplates the possibility that complaints about the misuse or disclosure of personal health information may properly be the subject of a procedure that does not fall within the reach of PHIPA. In my view, the language of s. 57(4)(b) is difficult to reconcile with the proposition that the complaint procedure under PHIPA is exhaustive and exclusive.

[40] The appellants argue that s. 57(4)(b) contemplates proceedings such as complaints to a professional college where a doctor or nurse has misused patient information. No doubt, professional complaints of that nature are covered by s. 57(4)(b). However, the very fact that PHIPA contemplates the resolution of disputes regarding personal health information by other tribunals undermines the argument in favour of exclusivity. Moreover, the appellants offer no explanation as to why we should limit the language of s. 57(4)(b) to one kind of tribunal and exclude the Superior Court, especially in relation to a claim that is not based on any rights conferred by PHIPA.

[41] I also read s. 71, the immunity provision, as explicit recognition that there could be proceedings relating to improper use or disclosure of personal health information other than those specifically contemplated by PHIPA. That provision provides immunity in an “action or other proceeding for damages” where there has been an attempt at good faith compliance with the provisions of the Act. In my view, this language indicates that the legislature did contemplate the possibility of a common law action for damages in the courts.

[42] Further, to the extent PHIPA does provide for individual remedies, it turns to the courts for enforcement. The Commissioner has no power to award damages. It is only by commencing a proceeding in the Superior Court following an order of the Commissioner that an individual complainant can seek damages, pursuant to s. 65.

[43] The appellants and the OHA argue that s. 65 demonstrates that the legislature turned its attention to the role of the courts and specifically limited their jurisdiction to assessing damages, hearing appeals on points of law and entertaining applications for judicial review.

[44] I disagree. In my view, the only conclusion that can be drawn from the role recognized for the courts under s. 65 is that the Commission was not intended to play a comprehensive or expansive role in dealing with individual complaints.

[45] I conclude that PHIPA provides an informal and highly discretionary review process that is not tailored to deal with individual claims, and it expressly contemplates the possibility of other proceedings.

(b) Essential character of the claim

[46] This factor involves an assessment of the extent to which the “essential character” of the claim is regulated by PHIPA, and whether the court’s assumption of jurisdiction would be consistent with the PHIPA scheme.

[47] The respondent’s claim does not rely on a breach of PHIPA. The claim as now pleaded is based solely upon the common law right of action identified in Jones v. Tsige. However, the appellants argue that in essence, the respondent’s allegations overlap with obligations and duties prescribed under PHIPA. They contend that allowing the respondent to proceed with her common law claim in the Superior Court would permit her to circumvent PHIPA and thereby avoid the statutory restrictions and limitations the Act imposes.

[48] I disagree with that position. Proving a breach of PHIPA falls well short of what is required to make out the Jones v. Tsige claim. The elements of the common law tort identified in that case, at para. 71, require a plaintiff to establish (1) intentional or reckless conduct by the defendant, (2) that the defendant invaded, without lawful justification, the plaintiff's private affairs or concerns and (3) that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. The first and third elements of the common law claim represent significant hurdles not required to prove a breach of PHIPA.

[49] The appellants point to two aspects of the common law claim that are arguably more lenient. Proof of actual harm is not an element of the tort of intrusion upon seclusion. In contrast, under PHIPA, where an individual claims damages in the Superior Court pursuant to s. 65, it is necessary to prove “actual harm that the person has suffered as a result of a contravention of this Act or its regulations.”

[50] The significance of this apparent difference is reduced considerably by two factors. First, Jones v. Tsige holds that without proof of actual harm, damages for the common law tort are limited to a “modest conventional sum”: at para. 71. Second, the third element of the common law tort requires a plaintiff to show that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. Section 65(3) of PHIPA provides that the court may include it in its award damages for mental anguish not exceeding alone $10,000. It is not at all clear to me that there is a significant difference between the damages recoverable in a common law action and the damages the Superior Court can award under s. 65(3) for mental anguish.

[51] The other difference between the two causes of action involves the applicable limitation period. Under the Limitations Act, 2002, S.O. 2002, c. 24, the limitation period for a common law claim is two years. Conversely, s. 56(2)(a) of PHIPA contemplates a one year limitation period for initiating a complaint. The significance of this difference, however, should not be overstated. Section 56(2)(b) allows the Commissioner to extend the one-year period if satisfied that there would be no prejudice to any person. Moreover, since a claim for damages under PHIPA requires a separate proceeding, PHIPA claims will almost always, as a practical matter, be brought to court well after the expiry of the one-year period. There is also no time limit on self-initiated reviews by the Commissioner.

[52] The above comparison leads me to conclude that allowing actions based on Jones v. Tsige to proceed in the courts would not undermine the PHIPA scheme. The elements of the common law cause of action are, on balance, more difficult to establish than a breach of PHIPA, and therefore it cannot be said that a plaintiff, by launching a common law action, is “circumventing” any substantive provision of PHIPA. The aspects of the common law that may at first glance appear more lenient are not, upon closer consideration, significantly advantageous.

[53] Allowing common law actions to proceed in the courts would, however, allow plaintiffs to avoid PHIPA’s complaint procedure, and I now turn to the issue of whether that procedure is sufficient to ensure effective redress.

(c) Effective redress

[54] The position taken on this appeal by the Commissioner in relation to his discretion to deal with individual complaints has a direct bearing on the issue of whether PHIPA’s dispute resolution procedure provides effective redress.

[55] PHIPA confers on the Commissioner a very wide discretion to decide whether or not to investigate a complaint. As I have noted, s. 57(4) provides that “the Commissioner may decide not to review the subject-matter of the complaint for whatever reason the Commissioner considers proper” (emphasis added). The informal and discretionary review procedure reflects the statutory focus on systemic issues.

[56] The Commissioner has submitted to this court that granting him exclusive jurisdiction over individual claims would impair his ability to focus on these broader issues. As it is put in the Commissioner’s factum, at para. 44:
The respective mandates of the courts and the [Commissioner] are different. The courts are focused on providing remedies to individuals, including compensation for tortious conduct, while the [Commissioner] is focused on prevention, containment, investigation and the systemic remediation of contraventions of PHIPA.
[57] I recognize that the Commissioner has, in the past, taken up individual complaints and made orders that could form the basis for a s. 65 claim for damages. However, those cases appear to be the exception rather than the rule.

[58] It is, of course, for this court, not the Commissioner, to decide the legal issue on this appeal. Nonetheless, I do not think that we can or should ignore the clear indication from the Commissioner as to how he intends to exercise the discretion conferred by the statute.

[59] It appears entirely likely that many individual complaints that could give rise to a proper claim in common law will not result in an order from the Commissioner. Where a complaint does not raise systemic issues or where any systemic issues have been addressed to the satisfaction of the Commissioner, he may decline to conduct a review or decline to make an order that could form the basis for a claim for damages. Even if the Commissioner investigates a complaint, his primary objective in achieving an appropriate resolution will not be to provide an individual remedy to the complainant, but rather to address systemic issues.

[60] The broad discretion conferred on the Commissioner by PHIPA means that complainants would face an expensive and uphill fight on any judicial review challenging a decision not to review or proceed with an individual complaint.

[61] It was suggested in oral argument that an individual complainant could always ask the Attorney General to launch a prosecution pursuant to s. 72 and then use the conviction as a basis for claiming damages under s. 65(2). I am not persuaded that this argument alleviates the problem. First, it would subject the individual complainant to yet another discretionary hurdle. Second, it is hardly a persuasive argument supporting the exclusivity of the PHIPA process to say that individuals can obtain redress by resorting to the courts by way of a prosecution.

(d) Intention to create an exhaustive code: Conclusion

[62] For these reasons I am unable to agree with the contention that we should imply a legislative intention to confer exclusive jurisdiction on the Commissioner to resolve all disputes over misuse of personal health information.

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