Canadian Lawyer

40 F E B R U A R Y 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m office in Ontario, where the Personal Health Information Protection Act is in the process of being amended via bill 119. The amendment will increase account- ability by making it mandatory to report privacy breaches to the IPC, and in cer- tain cases, to relevant regulatory bodies. That means if health-care professionals such as doctors and nurses were caught invading the privacy of patients they could also face disciplinary measures from their regulators. "I think there is a real role here for the regulatory colleges to play," says Beamish. "A sanction from a regulatory college sends a pretty strong signal and is a significant deterrent from doing it." Bill 119 will amend the 11-year-old PHIPA and is currently at second read- ing. It was introduced in September 2015, more than a year after the Rouge Valley scandal broke. It would also strengthen the process to prosecute offences under PHIPA by removing the requirement that prosecutions be commenced within six months of the alleged privacy breach. It also aims to discourage "snooping" into patient records by doubling the fines for offences to $100,000 from $50,000 for individuals and to $500,000 from $250,000 for organizations. "We're not talking about prosecuting every time someone goes into a file they don't have a right to go into, but there are circum- stances where you know it is not just a run-of-the-mill case but has reached a level of seriousness where a signal has to be sent," says Beamish. "This should increase traffic and number of cases referred will go up a fair bit." Beamish calls it a "frustrating area" to determine how much of a deterrent is enough to keep people from snooping on other's medical records. "If you look at the [former Toronto mayor] Rob Ford case, where last September he went in for treat- ment and people were caught looking at his file and sanctioned, but when he went back into hospital in February and the same thing happened — what does it take to get the message you shouldn't be doing this?" Three hospital workers have been charged for snooping into Ford's medi- cal records after he was diagnosed with cancer. "It was well publicized that people lost their jobs yet it happened again," says Beamish. Privacy and regulatory lawyer David Young agrees with Beamish and says snooping in the health-care sector is "almost at a crisis. I think with the enhanced obligations to notify and report the commissioner is trying to make the system more proactive, and it could result in more litigation," he says. "They realize there has to be a stronger hammer on organizations and individuals to stop this stuff." Young says some provinces have creat- ed offences for "snooping," but in Ontario it has to have been an intentional theft — the unauthorized, wilful taking of personal information. "That's a very high standard of what can be the basis of a prosecution under the act," he says. Then there is the Supreme Court of Canada's denial of leave to appeal a case that Chris Naudie, co-chairman of the class actions group at Osler Hoskin and Harcourt LLP, says has "opened the door" to privacy class actions in the health-care sector. On Oct. 29, the Supreme Court L E G A L R E P O RT \ I T / P R I VA C Y L AW

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