Supreme Court of Nova Scotia implicitly recognises the tort of seclusion in that provinces common law

October 22, 2015 |

In a recent interlocutory decision in the class action of Hemeon v South West Nova District Health Authority 2015 NSSC 287 relating to a dispute over discovery Justice Pickup rejected the defendant’s submission that the plaintiffs’ claim of a tort of intrusion upon seclusion in relation to unauthorised access to medical records was not recognised in Nova Scotia. He said that the tort had been recognised implicitly in previous Nova Scotia decisions.

Decision

The result, the equivalent of a headnote in Australian decisions, states:

The defendant argued, inter alia, that disclosure of the representative plaintiff’s medical records was necessary to determine the elements of the tort. There had not been a successful claim for intrusion upon seclusion in Nova Scotia. However, the tort had been recognized implicitly in several decisions, with elements that had been set out by the Ontario courts. There was no apparent basis for requiring production of an individual plaintiff’s medical records in determining the existence or the elements of the tort in Nova Scotia. The court held that the scope of production in a class action was determined by the common issues.

(Emphasis added)

The plaintiffs claim that as a result of a former employee of the defendant accessing the their medical records the defendant has committed the tort of “intrusion upon seclusion”. The defendant, it is alleged, was vicariously liable for the former employee’s actions and is independently negligent for the way in which it administered its medical records system [2].

His Honour confirmed the existence of tort of inclusion upon seclusion in the Ontario Court of Appeal decision in Jones v Tsige [19] with the elements, at [8], being:

a) The defendant’s conduct must be intentional (which could include recklessness);

b) The defendant must have invaded the plaintiff’s private affairs or concerns without lawful justification; and

c) A reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

The defendant argued that the plaintiffs would need to produce their medical records to establish element (c). His Honour made the interesting comments on this point stating, at [24] that:

“…In particular, it is the defendant’s position that these records are required in order to determine whether the court should apply the elements that have already been endorsed implicitly by this court and explicitly by the Ontario Court of Appeal, or whether Prosser’s “anguish and suffering” – or the Australian “mental, psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do”, also referred to in Jones, supra,– should be incorporated into the tort in Nova Scotia.”

The court rejected the defendant’s argument stating that the elements of the tort will be a policy decision [26]. He also rejected the submission that the medical records are relevant for the consideration of damages and whether they can be assessed in the aggregate [29].

The court found that in the context of class proceedings the distress of a class member is irrelevant to the common issues [33].

Comment

The Canadian Lawyer Magazine has reported on the decision in Privacy tort ‘implicitly’ recognized in Nova Scotia: court.

In Australia it is unlikely that the appellate division in the State Supreme Courts will recognise a tort of privacy. The leading decision has expanded breach of confidence to cover misuse of private information. It is likely that the High Court, if it does look at this issue will favour expanding existing causes of actions rather than find a common law tort of privacy. The best solution would be for a statutory right to privacy with a statutory cause of action.

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Peter A Clarke