Newfoundland privacy breach class action moves forward

22 Nov

On November 14th the Supreme Court of Newfoundland and Labrador Trial Division held that the pleadings in a privacy breach class action disclose a reasonable cause of action.

Even for an application of the Hunt v Carey standard, the Court did not probe at the pleadings with any significant force. It:

  • held that an alleged failure to establish safeguards was enough to found a “willful violation” claim;
  • held that a question about whether Newfoundland’s statutory privacy tort could operate together with the common law vicarious liability doctrine should be determined at trial;
  • held that the availability of the common law intrusion upon seclusion tort in Newfoundland should be determined at trial;
  • allowed a negligence claim for distress and humiliation to proceed even though no specific psychiatric illness or prolonged psychological injury was pleaded because “the threshold of compensable harm will depend on the evidence at trial”; and
  • held that the availability of contract claim for non-economic loss should be determined at trial.

The Court struck claims for breach of statute, breach of the Charter and breach of fiduciary duty. The Court remains seized of the certification application.

Hynes v Western Regional Integrated Health Authority, 2014 CanLII 67125 (NL SCTD).

Addressing the privacy interests of affected individuals

20 Nov

I presented today at the Canadian Institute’s program on advanced administrative law. My topic was about how to deal with the privacy interests of affected non-parties. Here are my slides, revised based on my evolving understanding of this (difficult) issue. My thesis as it stands: we need to develop a principled exception to the audi alteram partem rule that governs when affected non-parties get notice and right to be heard. Courts and admin law decision makers appear to be attracted to solution that rests on the involvement of an appropriate representative party, but the current solutions are not driven by any express principle.

Police disclosure of accused’s HIV status breaches s 7, stay denied

16 Nov

On July 7th, Justice Block of the Ontario Court of Justice held that the police breached MFIPPA and section 7 of the Canadian Charter of Rights and Freedoms by disclosing an accused person’s status as HIV-positive without a reasonable belief that the individual posed a significant risk of harm to others.

The accused  was a youth pastor who was charged with luring a person believed to be under the age of sixteen. Charges followed after the accused offered to give fellatio to a sex crimes detective who was posing as a fifteen year old. After his arrest, the accused volunteered his status as HIV-positive, and the police published a media release that described the accused’s status for the purpose of alerting individuals who had been in contact with the accused to they could seek testing or treatment services.

Justice Block was shocked at the assumptions that the police employed. He said:

Mr Gowdy was intensely private about his sexual interests. His family, church community and the bulk of his friends were unaware of his sexual orientation. His church regards homosexual practises as sinful. The evidence suggests that this deeply closeted pastor would have had furtive occasional sexual encounters with men he knew little or nothing about. Whether or not Mr Gowdy was evasive, there was no admission in his interview that these prior sexual contacts were unaware of his HIV status, other than contacts he had after his exposure to HIV but before his diagnosis. There was no admission that he engaged in activities that carried the risk of transmission after his exposure. No steps were taken to find out if the medical authorities treating Mr Gowdy had already traced his contacts.

Justice Block held the disclosure was not authorized by the Police Services Act and breached MFIPPA and the right to be free from “serious state-imposed psychological stress” that is guaranteed by section 7 of the Charter. He said that a police media release that names a person HIV-positive must be authorized by a police chief or properly authorized designate and must be based on a reasonable belief that the disclosure will ameliorate a significant risk of harm to the public. More questionably, reasoning that the Police Services Act is a “complete code,” he suggested that the police cannot release such information about a person who has only been charged with an offence.

Justice Block denied a stay, but chided the police for their “well-intentioned” demonstration of “profound ignorance.”

R v Gowdy, 2014 ONCJ 592 (CanLII).

Tort damages awarded for privacy breach in Ontario

7 Nov

On October 31st, the Ontario Superior Court of Justice ordered general damages for breach of privacy under our new tort.

This is another love triangle case involving an improper access to personal information. The defendant worked at Legal Aid Ontario. The plaintiff was her boyfriend’s ex. The defendant accessed the plaintiff’s legal aid file without authorization, learned she had dealings with Children’s Aid and threatened to call Children’s Aid to have the plaintiff’s children taken from her. The plaintiff gave evidence that Children’s Aid investigated, but failed to prove this was because of the plaintiff’s disclosure. The plaintiff also unsuccessfully alleged that she lost a job because of the breach or – to be more precise – the anxiety caused by the breach.

Legal Aid Ontario settled and the defendant did not defend the action.

The Court dismissed all  special damages claims and said that the evidence showed “irritation rather than devastation.” On a $100,000 claim, it awarded a modest amount for general damages. The judgement unfortunately records the damages award at both $7,500 and $10,000. The Court also awarded $6,500 in partial indemnity costs.

McIntosh v Legal Aid Ontario, 2014 ONSC 6136.


Request for jury contact information dismissed

1 Nov

On October 22nd, the Ontario Superior Court of Justice dismissed a motion for third-party production of the names, telephone numbers and home addresses of 800 people summoned to jury duty. The plaintiff in a slip and fall claim wanted this information to contact potential witnesses, a plan that Mulligan J held the plaintiff did not establish was necessary. Notably, Mulligan J also reviewed various authorities about the role of a criminal jury and held that, in the context, the contact information at issue was “core biographical information.”

I’m most interested about the Court’s sensitivity to the privacy interest and procedural rights of the affected 800 individuals. It apparently adjourned the first day of the motion and ordered the plaintiffs to serve the IPC/Ontario. The IPC chose not to attend, perhaps because it viewed attendance as inconsistent with its mandate. The Court referenced a recent Alberta case in which the Court of Queen’s Bench of Alberta appointed an amicus and directed it to give notice to a group of jury members (and not a large jury pool) whose privacy interests were at stake in light of a similar production request. I’ll be addressing the procedural dilemma posed in similar circumstances at the Canadian Institute’s upcoming “Advanced Administrative Law and Practice” conference. I’ve clipped the program below.

Champagne v Corporation of the City of Barrie, 2014 ONSC 6103 (CanLII).


NSCA grants protective order, clarifies public interest test

29 Oct

Yesterday the Nova Scotia Court of Appeal granted an order prohibiting the public disclosure of confidential business information belonging to the defendants in an action. It held that the motions judge erred by ruling out the order because the moving parties had a commercial interest in keeping the the relevant information secret. A concurrent public interest, according to the Court, will suffice:

That D+H and Resolve have a specific private interest does not exclude the existence of a concurrent public interest. The two are not mutually exclusive. In Sierra Club, Justice Iacobucci said (para 55) “the interest in question cannot merely be specific to the party requesting the order; the interest must be one which can be expressed in terms of a public interest in confidentiality” [emphasis added]. The question is whether D+H/Resolve’s clear private interest also can be expressed in terms of a public interest in confidentiality.

Here, the Court recognized the public interest in the integrity of a government tendering process and, after weighing competing interests as called for by the Sierra Club case, granted the order.

Resolve Business Outsourcing Income Fund v. Canadian Financial Wellness Group Inc., 2014 NSCA 98 (CanLII).

Ontario arbitrator partly allows medical information management grievance

25 Oct

On October 8th, Arbitrator Goodfellow partly allowed a grievance that challenged various ways in which an employer administered its sick leave program. In doing so, he held that:

  • absent an express prohibition in a collective agreement, an employer is entitled use a third-party disability management administrator; and
  • absent specific collective agreement authorization, an employer cannot deprive employees of sick pay pending proof of entitlement as a matter of routine.

Arbitrator Goodfellow also made the following statement on the application of Ontario PHIPA to employers:

We agree with the Employer that it is not bound by PHIPA in its relationship to its employees. Qua long-term care provider the Employer is a “health information custodian”; qua employer it is not: see e.g. City of Kingston and Canadian Union of Public Employees, Local 109, supra.  The same is therefore true of Acclaim. PHIPA is aimed at health care providers, not employers. Neither of the cases referred to by the Union establish otherwise. While both discuss the statute, and while Sanofi Pasteur appears to accept its application, there is no indication that the matter was the subject of any submissions in those cases as it was here and in City of Kingston. Having said that, like those arbitrators, we would view the terms of PHIPA as reflecting the kinds of privacy interests to which the Employer may be held accountable under the terms of the collective agreement.

This is a helpful statement given the confusion in the case law to which Arbitrator Goodfellow refers.

Revera Long Term Care Inc (Stoneridge Manor) v Canadian Union of Public Employees, Local 2564, 2014 CanLII 58768 (ON LA).


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