Ontario Court of Appeal Allows Privacy Class Action to Proceed Against Hospital

The Ontario Court of Appeal’s recent decision in Hopkins v Kay may have paved the way for private plaintiffs to bring class actions on the basis of tortious claims for breach of privacy within the health sector and potentially in other regulated industries. The Court of Appeal refused to strike a claim for a class action based on the recent tort of intrusion upon seclusion. The Court noted that the relevant privacy legislation, the Personal Health Information Protection Act, is not an exhaustive code and therefore does not preclude tort claims. As such, a claim for intrusion upon seclusion arising in conjunction with the applicable privacy legislation was not bound to fail.  Though it remains to be seen whether the claims in Hopkins v Kay will be certified, the decision appears to open the door for the class actions bar to pursue collective claims of relief for significant aggregate claims of damage against organizations in the health care sector.  The decision also suggests that private plaintiffs might be able to pursue class proceedings for privacy breaches in other provinces that have comprehensive privacy statutes, as well in regulated sectors and industries where the legislature has created a separate regulatory and enforcement regime. For an in depth discussion of the case, see our Osler Update.