MICHAEL A. CRYSTAL

Peterborough Regional Health Centre (PRHC)

Status of Peterborough Regional Health Centre Class Action

The proposed class action involving breaches of patients’ personal health information at the Peterborough Regional Health Centre is proceeding to the next step: applying to the court to have the action certified as a class action.  There are no court dates set as of yet.

Supreme Court Decision Permits Class Action to Proceed

On October 29, 2015, the Supreme Court of Canada dismissed a proposed appeal of Hopkins v. Kay in which the Court of Appeal ruled that patients should be permitted to sue hospitals and staff members for privacy breaches, such as snooping into medical records, and not simply be restricted to making a complaint to the Information and Privacy Commissioner. Click here to view an article on this case. Here is the summary from the Supreme Court website: Peterborough Regional Health Centre, et al. v. Heike Hesse and Erkenraadje Wensvoort on behalf of themselves and all others similarly situated, et al.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.

Privacy law – Breach of privacy rights – Statutory interpretation – Legislative intention to create complete code – Tort law – Intrusion upon seclusion – Whether the Ontario Personal Health Information Protection Act, S.O. 2004, c. 3, Sch. A, creates an exhaustive code governing patient records that precludes common law claims for breach of privacy and ousts the jurisdiction of the Superior Court – Does the new tort of intrusion upon seclusion allow the court to ignore comprehensive legislative codes affording remedies for breach of privacy? – When a comprehensive statutory scheme administered by an expert decision-maker provides adequate and effective remedies, must the court defer adjudication of disputes whose essential character relates to that scheme until the statutory remedies are exhausted?
Erkenraadje Wensvoort is a representative plaintiff in a proposed class action. She and 280 other patients of the Peterborough Regional Health Centre (“the Hospital”) received notices from the Hospital, as required by the Ontario Personal Health Information Protection Act, S.O. 2004, c. 3, Sch. A (“PHIPA”), indicating that the privacy of her personal health information had been breached. Mandy Edgerton Reid, is a registered practical nurse who worked at the Hospital. The statement of claim states that she and other individual defendants, who were all Hospital employees when the breaches occurred, improperly accessed and disclosed patient records. Ms. Wensvoort initially relied on breaches of PHIPA to assert a cause of action. The statement of claim was subsequently amended to contain only the common law tort of intrusion upon seclusion (breach of privacy), recognized by the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241. The Hospital brought a motion to strike the claim and dismiss the action, on the ground that PHIPA is an exhaustive code that ousts the jurisdiction of the Superior Court to entertain any common law claim for invasion of privacy rights in relation to patient records.

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