Analysis of Hopkins v. Kay, this by Bradley J. Freedman, Barry Glaspell and Patrick Hawkins of Borden Ladner Gervais LLP:
… In Hopkins v. Kay, a patient of a hospital, on her own behalf and that of other patients in the “class” proposed to be certified by the court, alleged that her hospital records had been accessed by hospital staff without consent or other authorization. The hospital acknowledged that members of its staff had accessed the records without lawful cause, apologized to the patients and took disciplinary action against the staff members.
[…]
The Court of Appeal concluded, following a detailed analysis of the scheme established in PHIPA for the collection, use, disclosure and protection of personal health information, that an action for intrusion upon seclusion is available to the plaintiffs. The Court acknowledged that PHIPA is a “comprehensive set of rules about the manner in which personal health information may be collected, used, or disclosed across Ontario’s health care system”. However, the Court found that the PHIPA does not contain detailed procedures or a detailed dispute resolution mechanism, leaving such details to the discretion of the IPC. The Court’s analysis was shaped by three factors identified by the Nova Scotia Court in the case of Pleau v. Canada (A.G.):
- the process for dispute resolution established by the legislation and more specifically, whether it is consistent with exclusive jurisdiction, for example, whether it contains privative clauses ousting the jurisdiction of the court;
- the relationship between the nature of the dispute and the rights and obligations created by the overall scheme of the legislation, or put otherwise, the extent to which the dispute is regulated by the legislative scheme and the assumption of jurisdiction by the court would be consistent with that scheme; and
- whether the legislation affords the plaintiff effective redress.
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