In the 1980’s the Supreme Court of Canada pre-emptively ended the development of a common law tort of discrimination. The case, Seneca College v. Bhadauria, stands out as one of the lost opportunities in the development of the common law in Canada. The battle lines have re-emerged in the context of the development of Ontario’s new privacy tort – intrusion upon seclusion. How it will play out is yet to be seen.
Although the cases involving the tort of intrusion upon seclusion do not mention Bhadauria — that case casts a long shadow and is essential reading to understand what is currently at stake for those who seek to advance a common law privacy tort.
In Bhadauria, the plaintiff complained that she had been repeatedly discriminated by the defendant college on the basis of her ethnic origin. She had applied for 10 positions on the teaching staff of the college and had never been granted an interview. Bertha Wilson J.A., writing for a unanimous bench of the Court of Appeal, recognized a new common law tort of discrimination and concluded that the Human Rights Code did not impede or exclude the development of the common law in this area in Ontario.
The college appealed the decision in Bhadauria to the Supreme Court of Canada with leave of that court. Chief Justice Laskin, writing for the court, concluded that the Human Rights Code was comprehensive legislation providing for a complaint procedure, a board of inquiry and judicial scrutiny. Laskin C.J. concluded that the Human Rights Code had – for better or worse – overtaken the development of the common law and foreclosed any development of the tort based on the anti-discrimination policy underlying the Human Rights Code. There ended the development of the tort of discrimination. Although the Supreme Court was asked to reverse its decision in 2008 in Honda Canada Inc. v. Keays, it did not do so.
Intrusion Upon Seclusion
Fast forward to 2012 and Ontario’s Court of Appeal recognized the tort of intrusion upon seclusion in Jones v. Tsige. In that case the defendant, an employee of the bank, had repeatedly accessed the banking information of the plaintiff who was in a relationship with the defendant’s former husband. The court recognized a new privacy tort and awarded damages for the intrusive behaviour of the defendant.
An open question was whether and how this new tort would fare in the context of Canada’s federal and provincial privacy legislation. The Ontario Court of Appeal made no mention of Bhadauria and the fateful attempt to establish a new tort in that case, although the issue appears to have been on Sharpe J.A.’s mind in his reasons. The defendant argued that privacy was already subject to provincial and federal legislation. However, the court concluded with brief reasons that “it would take a strained interpretation to infer from these statutes a legislative intent to supplant or halt the development of the common law in this area” (para. 49).
The court distinguished the federal Personal Information Protection and Electronic Documents Act (PIPEDA) on the basis that it applied to “organizations” and not an individual tortfeasor. The plaintiff’s recourse would have been to make a complaint against her own employer rather than the culpable person. Moreover, PIPEDA did not speak to the existence of a civil cause of action in Ontario. The Ontario Freedom of Information and Protection of Privacy Act addressed the practices of governments and public institutions and was not applicable.
Personal Health Information – Another Frontier
However, whether the tort could apply in other contexts was not entirely put to rest. There remained an open question whether the tort could apply in respect of conduct or events that might be the subject of a complaint under Ontario’s Personal Health Information Protection Act (“PHIPA”). This issue arose last month in the case of Hopkins v. Kay. The case involved the alleged the improper access of personal health records of 280 patients of a hospital without consent of the patients.
The hospital brought a motion to strike the claim based on the new tort on the basis that PHIPA covered the field. The hospital might have had the better argument based on Bhadauria. Complaints could be made to the Information and Privacy Commissioner of Ontario who has broad administrative and enforcement powers under PHIPA. Once the Commissioner made an order that had become final, a person affected by the order could commence a proceeding in the Superior Court of Justice for damages for actual harm that the person suffered as a result of a contravention of PHIPA. Damages are limited to $10,000 for mental anguish and there is an immunity provision to protect health information custodians and their agents from any action that seeks damages for acts or omission that have been made in good faith and that are reasonable in the circumstances.
Nevertheless, the motions judge refused to strike out the pleading finding that it was not so plaint and obvious that the claim was doomed to fail on the basis that PHIPA covered the field. The motions judge held “[i]f the position of the Hospital is to be sustained, it will require a decision of the Court of Appeal, which […] determines that there is no claim for breach of privacy and that the claim must rest on the provisions of PHIPA.”
The battle is clearly not over.