Patrick J. Hawkins

Following the dismissal of two proposed class action certification motions and a Rule 21 motion regarding the unauthorized sale of hospital patient contact information to RESP sales representatives, the successful defendants sought costs totaling over $690,000.

The Law Foundation of Ontario, which had indemnified the plaintiffs, argued that no costs should be awarded due to the novelty of the legal issues and the significant public interest in the protection of health privacy.

The court agreed, finding that the case raised novel questions about commercial liability for purloined patient information and engaged important public policy issues.

Applying section 31 of the Class Proceedings Act, 1992, the court exercised its discretion to make no order as to costs.

Two proposed privacy class actions arising from hospital employees’ unauthorized extraction of patient contact information for RESP sales leads were refused certification.

The court held that, on the actual evidentiary record, the disclosure of contact information alone, without disclosure of medical records or other objectively private information, could not support the tort of intrusion on seclusion because there was intrusion but no legally sufficient seclusion and no objectively highly offensive invasion.

Although certain claims, including a PHIPA s. 65 claim and some negligence theories against the hospitals and rogue employees, were arguable at the pleadings stage, there were no viable common issues and a class proceeding was not the preferable procedure.

Small Claims Court proceedings or PHIPA-related processes were found more proportionate for any remaining individualized claims.

The plaintiff brought a proposed class action for the common law tort of intrusion upon seclusion after hospital staff improperly accessed patient records.

The defendants moved to strike the claim, arguing that the Personal Health Information Protection Act (PHIPA) constitutes an exhaustive code that ousts the Superior Court's jurisdiction.

The Court of Appeal dismissed the appeal, holding that PHIPA does not create an exhaustive code.

The Act's language, its highly discretionary review procedure tailored for systemic issues, and its explicit contemplation of other proceedings indicate that the legislature did not intend to preclude common law claims for breach of privacy.

The moving parties (plaintiffs in a proposed class proceeding for privacy breach) brought a motion to quash the defendant hospital's appeal to the Court of Appeal.

They argued the motion judge's order refusing to strike their claim for lack of jurisdiction under the Personal Health Information Protection Act was interlocutory, meaning the appeal should go to the Divisional Court.

The Court of Appeal dismissed the motion to quash, holding that an order refusing to dismiss or stay an action based on lack of jurisdiction over the subject matter is a final order, as it precludes the defendant from continuing to dispute jurisdiction.

Therefore, the appeal was properly before the Court of Appeal.