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INVASION OF PRIVACY - Personal information

Wednesday, July 31, 2019 @ 10:11 AM  


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Appeal by Universe from an order striking his claim against the respondents, a solicitor and his law firm. In 2017, the appellant sued a regional health authority and other individuals, alleging he was mistreated and assaulted in the course of seeking medical treatment. The respondents were retained to represent the defendants and filed a response to the claim. The list of the defendants’ documents included 368 pages of the appellant’s medical records, covering a five-year period. Following service of the list of documents, the appellant sued the respondents and others, alleging breaches of the Privacy Act, the Legal Profession Act, and intentional infliction of harm. The appellant alleged that the respondent lawyers wrongfully accessed the appellant’s medical records without his consent and without first having obtained a court order. The respondents applied to strike the claim. The chambers judge concluded that the appellant’s claim did not give rise to a cause of action against the respondents. Obtaining and producing documents in the course of litigation did not constitute any independent act or breach, and the appellant’s confidentiality was protected by the implied undertaking rule. Universe appealed.

HELD: Appeal dismissed. The appellant’s claim was based on an assertion that had no merit. The health care providers sued by the appellant had a right to obtain legal advice, with their lawyer requiring the ability to access all information and documentation relevant to defending the action. Any privilege, privacy or confidentiality in the medical records was implicitly waived by the appellant. Such waiver was necessary to allow a medical defendant to make full answer and defence. None of the appellant’s specific claims of breaches of the Privacy Act or Legal Profession Act, or the tort of intentional infliction of harm, had a reasonable prospect of success. The Privacy Act did not prevent lawyers from fulfilling professional and ethical obligations related to discovery. The respondents listed and produced documents as required by the Rules. Their conduct was performed as a required step in the civil litigation process and thus could not be regarded as outrageous conduct calculated to produce harm. The Court endorsed the chambers judge’s observation that the appellant’s confidentiality continued to be protected by virtue of the implied undertaking.

Universe v. Fraser Health Authority, [2019] B.C.J. No. 1178, British Columbia Court of Appeal, D.M. Smith, D.C. Harris and G.B. Butler JJ.A., June 21, 2019. Digest No. TLD-July292019008