Potential Class Action for Breach of Privacy of Capital Health Records?

Capital Health in Halifax admitted this week that one of their former employees breached the privacy of more than 100 Capital Health patients by viewing their medical records without proper authorization.

Capital Health notified affected patients this week and apologized for the breach of privacy.

“We apologize to all of those people whose private information was viewed and to the community at large,” said Catherine Gaulton, a Vice President of Capital Health.

The news was timely because the Ontario Court of Appeal recently recognized that people have a right to privacy and that there is a potential cause of action for invasion of privacy.

In Jones v. Tsige, Ms. Tsige, an employee of The Bank of Montreal accessed the financial records of Ms. Jones (who is also an employee of the bank) over 170 times over a period of four years.

Although Ms. Tsige viewed Ms. Jones’ private personal information, Tsige did not publish, distribute or record the information in any way. Ms. Tsige was disciplined by The Bank of Montreal.

The Ontario Court of Appeal reviewed Canadian common law cases, various provincial statutes as well as case law from the United States and the United Kingdom.

The Court of Appeal came to the conclusion that it was appropriate: “…to confirm the existence of a right of action for intrusion upon seclusion”. In other words, a common law cause of action for breach of privacy.

The court did note claims for breach of privacy will only arise for “deliberate and significant” invasion of privacy.

The Court of Appeal specifically noted intrusion into the privacy of health records would constitute grounds for a breach of privacy claim.

While the Tsige decision of the Ontario Court of Appeal isn’t binding on Nova Scotia courts, common law principles, and the statutory obligations would be the same in Ontario and Nova Scotia.

The Tsige decision means that not only do individual patients have a right to seek compensation for breach of the confidentiality of their health records, a potential class action on behalf of all of the patients who had their privacy rights breached could be launched against Capital Health.