Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m F E B R U A R Y 2 0 1 6 41 dismissed Peterborough Regional Health Centre's application for an appeal in Hop- kins v. Kay. The hospital argued the case didn't belong in court but rather with the Information and Privacy Commis- sioner. Lawyers for the plaintiffs argued they should be permitted to sue hospitals and staff members for privacy breaches and not simply be restricted to making a complaint to the IPC. A proposed class action lawsuit alleges Peterborough Regional Health Centre failed to adequately monitor its staff and implement policies and systems to pre- vent improper access to patient records. Plaintiffs are seeking general, punitive, and aggravated damages alleging that between 2011 and 2012 about 280 patient records were improperly accessed by hos- pital staff. Generally, health-care information in the sector in Ontario is regulated under PHIPA and in equivalent statutes in other provinces, with a balancing of respect for the privacy of patients as well as respect for the interests of health-care workers to perform their work in good faith. "Pursuant to that balance, there is only a limited damages remedy that exists under the statute as it stands and the key issue in Hopkins v. Kay was whether the statute was the only remedy available to the parties who had incurred invasion of their privacy with respect to their health- care records," says Naudie. "The Court of Appeal said it's not a comprehensive code and as a result, where there is an inva- sion of privacy in respect of health-care records, the individual plaintiff would not only have potential access to the remedy under the statute but they may also have remedies in tort — arguably much more conducive to class certification." The other advantages for a plaintiff in suing in a tort is that under the Court of Appeal decision in Jones v. Tsige there is a higher damages threshold and a longer limitation period of two years. When you sue in tort there is also the potential for punitive damages. "From my perspective, this decision and the Supreme Court's denial of leave has increased the exposure of health-care institutions to class actions that allege an intrusion on privacy of health-care information," says Naudie. There are a number of health-care class actions that will now proceed to the next stage as a result of this decision. One of the biggest is Rouge Valley, and in light of the outcome in Hopkins v. Kay, Naudie says he fully expects it will move forward — both claiming relief under the statute as well as claiming relief in tort. A number of class actions were on hold pending the outcome of Hopkins v. Kay, mainly because plaintiffs, as well as defendants, weren't sure what the land- scape of private remedies available looked like. "We've been advising our health-care clients that the exposure to a potential incursion of a patient's privacy has gone up," says Naudie. "One, because the vol- ume of data increases daily, and two, the legal framework has changed, both from the perspective of the substantive rem- edies available and the potential for col- lective relief, because the tort is arguably much more conducive to bringing a class proceeding and when a class proceeding is brought the exposure to a potential institution is potentially massive."

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