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INVASION OF PRIVACY - Personal information

Wednesday, December 12, 2018 @ 9:08 AM  


Lexis Advance® Quicklaw®
Motions by the plaintiffs for certification of two proposed class actions. Three employees of two public hospitals which had subsequently merged into one hospital, independently accessed hospital records about patients who had given birth at the hospitals. One of the rogue employees used the contact information to sell Registered Education Savings Plans (RESPs) for the newborns. Two of the rogue employees sold the names and contact information to sales representatives of three RESP investment dealers, who then used the contact information to sell RESPs for the newborns. Among the patients contacted by the RESP sales representatives were women who allegedly were emotionally upset by the RESP solicitation. Some of those women commenced two proposed class actions, claiming damages in excess of $450 million. While the rogue hospital employees disclosed contact information, they did not sell or disclose confidential medical information about the patients. The plaintiffs advanced causes of action of intrusion on seclusion, breach of the Personal Health Information Protection Act (PHIPA), negligence, breach of contract and warranty, and vicarious liability.

HELD: Motions dismissed. The plaintiffs’ claim for intrusion on seclusion, as pleaded, satisfied the cause of action criterion as against the three rogue employees. However, there was no significant invasion of personal privacy and a reasonable person would not have found the disclosure of contact information offensive or a cause for distress, humiliation, and anguish. As a result, there was no basis in fact for a common issue for intrusion on seclusion. Furthermore, it was plain and obvious that the plaintiffs did not have a breach of contract and warranty claim against the hospital. There was no express contract and the relationship for the provision of medical services was not regarded as contractual in nature. The plaintiffs satisfied the cause of action criterion for a statutory claim pursuant to section 65 of the PHIPA and for a negligence claim against the hospitals and their rogue employees. The class definitions for both actions, as revised, satisfied the identifiable class criterion. However, there were no common issues and, accordingly, the preferable procedure criterion was not satisfied.

Broutzas v. Rouge Valley Health System, [2018] O.J. No. 5528, Ontario Superior Court of Justice, P.M. Perell J., October 25, 2018. Digest No. TLD-December102018005