



COURT OF APPEAL FOR ONTARIO

CITATION: Hopkins v.
    Kay, 2015 ONCA 112


DATE: 20150218

DOCKET: C58403

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Jessica
    Hopkins
, Heike Hesse,

Erkenraadje
    Wensvoort on Behalf of Themselves and

All
    Others Similarly Situated

Respondent (Plaintiff)

and

Andrea
    Kay, Dana Gildon Cormier,
Mandy Edgerton Reid
,

Dawn
    Deciocci, Jane Doe A, Jane Doe B, Jane Doe C,

Peterborough
    Regional Health Centre

and

Sir
    Sanford Fleming College

Appellants (Defendants)

Patrick J. Hawkins and Daniel Girlando, for the appellant
    Peterborough Regional Health Centre

Jonathan C. Lisus and Ian C. Matthews, for the appellant
    Mandy Edgerton-Reid

Jean-Marc Leclerc, Michael A. Crystal and Norman
    Mizobuchi, for the respondent

Daniel Michaluk and Mitchell Smith, for the intervener Ontario
    Hospital Association

Linda Rothstein and Jodi Martin, for the intervener The Information
    and Privacy Commissioner of Ontario

Heard: December 15, 2014

On appeal from the order of Justice Mark L. Edwards of
    the Superior Court of Justice, dated January 31, 2014.

Sharpe J.A.:

[1]

In this proposed class proceeding, the named plaintiff (respondent on
    appeal) alleges that her records as a patient at the Peterborough Regional
    Heath Centre (the Hospital) were improperly accessed. She bases her claim on
    the common law tort of intrusion upon seclusion, recognized by this court in
Jones
    v. Tsige
, 2012 ONCA 32, 108 O.R. (3d) 241.

[2]

This appeal arises from the Hospitals Rule 21 motion to dismiss the
    claim on the ground that the
Personal Health Information Protection Act
,
    S.O. 2004, c. 3, Sch. A (PHIPA) is an exhaustive code that ousts the
    jurisdiction of the Superior Court to entertain any common law claim for
    invasion of privacy rights in relation to patient records.

[3]

For the following reasons, I conclude that PHIPA does not create an
    exhaustive code. The respondent is not precluded from asserting a common law
    claim for intrusion upon seclusion in the Superior Court.

BACKGROUND

(1)

Facts

[4]

As this is an appeal from a decision made on a Rule 21 motion, the legal
    issues are to be determined on the basis of the facts as pleaded in the statement
    of claim.

[5]

While three representative plaintiffs were named when this proposed
    class action was commenced, there is now only one  the respondent, Erkenraadje
    Wensvoort. The statement of claim alleges that the respondent attended the
    Hospital on several occasions for treatment of injuries inflicted by her
    ex-husband. She eventually left her husband, but still feared for her safety
    and took steps to safeguard her identity.

[6]

The respondent received two notices from the Hospital, as required by
    PHIPA, indicating that the privacy of her personal health information had been
    breached. Two hundred and eighty patients were also notified of these breaches.
    The respondent pleads that she feared that her ex-husband had paid someone to
    access her patient records in order to find her.

[7]

The appellant Mandy Edgerton-Reid is a registered practical nurse who
    worked at the Hospital and was terminated as a result of allegations that she
    improperly accessed patient records. The statement of claim states that she and
    the other individual defendants, who were all Hospital employees when the
    breaches occurred, improperly accessed and disclosed patient records. The
    statement of claim also alleges that the appellant Hospital failed to adequately
    monitor its staff and implement policies and systems to prevent improper access
    to patient records.

[8]

The respondent initially relied on breaches of PHIPA to assert a cause
    of action against the appellants. The statement of claim was subsequently amended
    to contain only the common law cause of action identified in
Jones v. Tsige
.

(2)

Decision of the motion judge

[9]

The motion judge held that it was not plain and obvious that the claim
    based on
Jones v. Tsige
could not succeed. He noted that the existence
    of PHIPA and other privacy legislation had been brought to the courts
    attention in
Jones v. Tsige
. He refused to strike the claim under Rule
    21.

(3)

Motion to quash

[10]

The
    respondents motion to quash this appeal on the basis that the order is interlocutory
    in nature was dismissed on the ground that the refusal to stay or dismiss an action
    based on lack of jurisdiction is a final order:
Hopkins v. Kay
, 2014
    ONCA 514.

ISSUE

[11]

The
    issue on appeal is whether the respondent is, or should be, in the discretion
    of the court, precluded from bringing a common law claim for intrusion upon
    seclusion in the Superior Court because PHIPA creates an exhaustive code. The
    Ontario Hospital Association (the OHA) intervenes to support the position of
    the appellants. The Information and Privacy Commissioner (the Commissioner)
    intervenes to support the position of the respondent.

ANALYSIS

(1)

The legislative scheme

[12]

PHIPA
    was adopted in 2004 following a lengthy process of proposals, draft bills and
    consultations triggered by Justice Horace Krevers
Report of the Commission
    of Inquiry into the Confidentiality of Health Information in Ontario
(Toronto:
    Queens Printer, 1980).

[13]

The
    purposes of PHIPA, stated in s. 1, are:

(a) to establish rules for the collection, use and disclosure
    of personal health information about individuals that protect the
    confidentiality of that information and the privacy of individuals with respect
    to that information, while facilitating the effective provision of health care;

(b) to provide individuals with a right of access to personal
    health information about themselves, subject to limited and specific exceptions
    set out in this Act;

(c) to provide individuals with a right to require the
    correction or amendment of personal health information about themselves,
    subject to limited and specific exceptions set out in this Act;

(d) to provide for independent review and resolution of
    complaints with respect to personal health information; and

(e) to provide effective remedies for contraventions of this
    Act.

[14]

PHIPA
    is a lengthy and detailed statute comprised of seven parts and seventy-five
    sections dealing with the collection, use, disclosure, retention and disposal
    of personal health information. Part II specifies the required practices to be
    followed by custodians of personal health information to ensure accuracy and to
    protect confidentiality. If personal health information is stolen, lost or
    improperly accessed, subject to certain exceptions and additional
    requirements, the custodian is required to notify the individual at the first
    reasonable opportunity (s. 12(2)).

[15]

Detailed
    requirements for obtaining consent to the collection, use and disclosure of
    personal health information are set out in Part III. Collection, use and
    disclosure are the subject of Part IV. Rights of access and correction are addressed
    in Part V.

[16]

The
    provisions in Part VI deal with administration and enforcement. It is the
    purpose and effect of those provisions that lie at the heart of this appeal.

[17]

The
    Commissioner is responsible for the administration and enforcement of PHIPA.
    The Commissioner is appointed under s. 4(1) of the
Freedom of
    Information and Protection of Privacy Act
, R.S.O. 1990, c. F.31 (FIPPA),
    and is an officer of the legislature. In addition to PHIPA and FIPPA, the
    Commissioner is also responsible for the administration and enforcement of the
Municipal
    Freedom of Information and Protection of Privacy Act
, R.S.O. 1990, c. M.56.

[18]

The
    Commissioner has a broad mandate of public protection that enables him or her to
    conduct reviews under PHIPA in relation to the collection, use, disclosure,
    retention and disposal of records, as well as access to and correction of
    records. An individual who has reasonable grounds to believe that another
    person has or is about to contravene a provision of PHIPA may complain to the
    Commissioner (s. 56). Upon receipt of a complaint, the Commissioner may
    inquire as to what means, other than the complaint, that the complainant is
    using or has used to resolve the subject-matter of the complaint (s.
    57(1)(a)), require the complainant to try to effect a settlement (s.
    57(1)(b)), or authorize a mediator to review the matter and attempt to effect a
    settlement (s. 57(1)(c)).

[19]

If
    the Commissioner takes none of these steps or if these steps fail to achieve a
    resolution of the complaint, the Commissioner has two options. First, the
    Commissioner may review the subject-matter of a complaint made under this Act
    if satisfied that there are reasonable grounds to do so (s. 57 (3)).
    The second option is specified in s. 57(4):

The Commissioner may decide not to review the subject-matter of
    the complaint for whatever reason the Commissioner considers proper, including
    if satisfied that,

(a) the person about which the complaint is made has
    responded adequately to the complaint;

(b) the complaint has been or could be more appropriately
    dealt with, initially or completely, by means of a procedure, other than a complaint
    under this Act;

(c) the length of time that has elapsed between the date
    when the subject-matter of the complaint arose and the date the complaint was
    made is such that a review under this section would likely result in undue
    prejudice to any person;

(d) the complainant does not have a sufficient personal
    interest in the subject-matter of the complaint; or

(e) the complaint is frivolous or vexatious or is made in
    bad faith.

[20]

The
    Commissioner also has the power to conduct a self-initiated review of any
    matter where there are reasonable grounds to believe that there has been or is
    about to be a contravention of the Act (s. 58).

[21]

The
    Commissioner is given extensive procedural and investigative powers in relation
    to complaints (ss. 59-60) and the power to make a variety of orders following a
    s. 57 or 58 review (s. 61). The Act gives the complainant the right to make
    representations to the Commissioner (s. 60(18)) but does not contemplate a
    formal adversarial hearing for the resolution of complaints. An appeal from the
    Commissioners order on a question of law lies to the Divisional Court (s. 62).

[22]

Orders
    of the Commissioner may be filed with the Superior Court whereupon they become
    enforceable as a judgment of the court (s. 63).

[23]

The
    possibility of recovering damages as a result of a breach of PHIPA is the
    subject of s. 65:

65.  (1)
If the
    Commissioner has made an order under this Act that has become final as the
    result of there being no further right of appeal, a person affected by the
    order may commence a proceeding in the Superior Court of Justice for damages
    for actual harm that the person has suffered as a result of a contravention of
    this Act or its regulations.

(2)
If a
    person has been convicted of an offence under this Act and the conviction has
    become final as a result of there being no further right of appeal, a person
    affected by the conduct that gave rise to the offence may commence a proceeding
    in the Superior Court of Justice for damages for actual harm that the person
    has suffered as a result of the conduct.

(3)
If,
    in a proceeding described in subsection (1) or (2), the Superior Court of
    Justice determines that the harm suffered by the plaintiff was caused by a
    contravention or offence, as the case may be, that the defendants engaged in
    wilfully or recklessly, the court may include in its award of damages an award,
    not exceeding $10,000, for mental anguish.

[24]

The
    Commissioner is also given broad general powers to conduct research and provide
    information to the public in relation to the matters covered by PHIPA (s. 66).

[25]

Part
    VII, headed General, contains two provisions relevant to the issue raised on
    this appeal. Section 71 confers immunity upon entities or individuals
    exercising (or intending to exercise) powers and duties under PHIPA for good
    faith acts or omissions that were reasonable in the circumstances:

71.  (1)
No action or
    other proceeding for damages may be instituted against a health information
    custodian or any other person for,

(a) anything done, reported or said, both in good faith and
    reasonably in the circumstances, in the exercise or intended exercise of any of
    their powers or duties under this Act; or

(b) any alleged neglect or default that was reasonable in
    the circumstances in the exercise in good faith of any of their powers or
    duties under this Act.

(2)
Despite
    subsections 5(2) and (4) of the
Proceedings Against the Crown Act
,
    subsection (1) does not relieve the Crown of liability in respect of a tort
    committed by a person mentioned in subsection (1) to which it would otherwise
    be subject.

[26]

Finally,
    s. 72 makes it a summary conviction offence to,
inter alia
, wilfully
    collect, use or disclose personal health information in contravention of the
    Act (s. 72(1)(a)), punishable by fine of up to $50,000 for individuals and
    $250,000 for institutions (s. 72(2)). Pursuant to s. 72(5), only the Attorney
    General or agent for the Attorney General may commence such a prosecution.

(2)

Does PHIPA create an exhaustive code governing patient records that
    precludes common law claims for breach of privacy and ousts the jurisdiction of
    the Superior Court?

[27]

The
    Hospital and Ms. Edgerton-Reid, supported by the OHA, submit that PHIPA amounts
    to a comprehensive code that reflects a careful legislative attempt to balance
    various conflicting interests. They contend that PHIPAs careful balance would
    be disturbed if claims based on
Jones v. Tsige
were entertained by the
    courts in relation to personal health information. Permitting these common law
    claims would, according to the appellants, contradict the statutory scheme,
    defeat the intention of the legislature and undermine the policy choices
    embodied in PHIPA.

[28]

My
    analysis is two-fold. First, I consider whether a legislative intention to
    create an exhaustive code can be inferred from the language of PHIPA. Second, I
    address the jurisprudence raised by the appellants in support of their
    contention that PHIPA ousts the jurisdiction of the Superior Court.

(i)

Did the legislature intend to create an exhaustive code?

[29]

Ruth
    Sullivan, in
Sullivan on the Construction of Statutes
, 6th ed. (Markham,
    Ont.: LexisNexis Canada, 2014), at para. 17.20, explains the characteristics of
    an exhaustive code as follows: The key feature of a code is that it is meant
    to offer an exclusive account of the law in an area; it occupies the field in that
    area, displacing existing common law rules and cutting off further common law
    evolution. She notes, at para. 17.34, that if legislation constitutes a
    complete code, resort to the common law is impermissible. See also
Beiko v.
    Hotel Dieu Hospital St. Catherines,
2007 ONCA 860, at para. 4;
Cuthbertson
    v. Rasoulli
, 2013 SCC 53, [2013] 3 S.C.R. 341, at paras. 2-4. If PHIPA does
    constitute an exhaustive code, the court has no jurisdiction to entertain the
    claim advanced by the respondent and it must be struck.

[30]

An
    intention to create an exhaustive code may be expressly stated in the
    legislation or it may be implied. As there is nothing explicit in PHIPA dealing
    with exclusivity, the question is whether an intent to exclude courts
    jurisdiction  should be implied. In
Pleau v. Canada
(A.G.), 1999 NSCA
    159, 182 D.L.R. (4th) 373, leave to appeal refused, [2000] S.C.C.A. No. 83,
    Cromwell J.A. explained, at para. 48: Absent words clear enough to oust court
    jurisdiction as a matter of law, the question is whether the court should
    infer that the alternate process was intended to be the exclusive means of
    resolving the dispute.

[31]

Cromwell
    J.A. identified three factors that a court should consider when discerning
    whether there is a legislative intent to confer exclusive jurisdiction. First, a
    court is to consider the
process
for dispute resolution established by
    the legislation and ask whether the language is consistent with exclusive
    jurisdiction. Courts should look at the presence or absence of privative
    clauses and the relationship between the dispute resolution process and the
    overall legislative scheme:
Pleau
,

at para. 50 (emphasis in
    original).

[32]

Second,
    a court should consider the
nature of the dispute
and its relation to
    the rights and obligations created by the overall scheme of the legislation.
    The court is to assess the essential character of the dispute and the extent
    to which it is, in substance, regulated by the legislative scheme and the
    extent to which the courts assumption of jurisdiction would be consistent or
    inconsistent with that scheme:
Pleau
,

at para. 51 (emphasis in
    original).

[33]

The
    third consideration is the capacity of the scheme to afford
effective
    redress
 by addressing the concern that where there is a right, there
    ought to be a remedy:
Pleau
,

at para. 52 (emphasis in original).

[34]

These
    three factors provide a useful framework for considering the question posed on
    this appeal.

(a)

The language of PHIPA and the process it establishes

[35]

There
    can be no doubt that PHIPA lays down an elaborate and detailed set of rules and
    standards to be followed by custodians of personal health information. I accept
    former Commissioner Ann Cavoukians description of PHIPA as a comprehensive
    set of rules about the manner in which personal health information may be
    collected, used, or disclosed across Ontarios health care system:
Commissioners
    PHIPA Highlights
(Toronto: Information and Privacy Commissioner/Ontario,
    March 2005).

[36]

PHIPA
    also includes among its purposes the independent review and resolution of
    complaints with respect to personal health information and the provision of
    effective remedies for contraventions of the Act. The Act gives the
    Commissioner certain powers in this regard.

[37]

While
    PHIPA does contain a very exhaustive set of rules and standards for custodians
    of personal health information, details regarding the procedure or mechanism
    for the resolution of disputes are sparse. At para. 28 of the Commissioners
    factum, the review process is described as inquisitorial in nature. The Act
    essentially leaves the procedure to be followed to the discretion of the
    Commissioner. Reviews are generally conducted in writing. There is no requirement
    to hold an oral hearing, and therefore the fundamental features of an
    adversarial system, such as cross-examination, are absent. The Act gives
    complainants no procedural entitlements beyond the right to make
    representations. Pursuant to s. 59(1) of the Act, the usual procedural rights
    pertaining to administrative hearings granted by the
Statutory Powers Procedure
    Act
, R.S.O. 1990, c. S.22, do not apply.

[38]

The
    nature of the process established by PHIPA indicates that it was designed to
    facilitate the Commissioners investigation into systemic issues. While that
    process can be triggered by an individual complaint, the procedure is not
    designed for the resolution of all individual complaints. This coincides with
    the Commissioners policy, discussed in greater detail below, to give priority
    to complaints raising systemic issues.

[39]

I
    now turn to the specific language of the Act. Section 57(4)(b) provides that
    one of the factors to be considered by the Commissioner when deciding whether
    or not to investigate a complaint is whether the complaint has been or could
    be more appropriately dealt with, initially or completely, by means of a
    procedure, other than a complaint under this Act. On its face, s. 57(4)(b)
    specifically contemplates the possibility that complaints about the misuse or
    disclosure of personal health information may properly be the subject of a
    procedure that does not fall within the reach of PHIPA. In my view, the
    language of s. 57(4)(b) is difficult to reconcile with the proposition that the
    complaint procedure under PHIPA is exhaustive and exclusive.

[40]

The
    appellants argue that s. 57(4)(b) contemplates proceedings such as complaints
    to a professional college where a doctor or nurse has misused patient
    information. No doubt, professional complaints of that nature are covered by s.
    57(4)(b). However, the very fact that PHIPA contemplates the resolution of
    disputes regarding personal health information by other tribunals undermines
    the argument in favour of exclusivity. Moreover, the appellants offer no
    explanation as to why we should limit the language of s. 57(4)(b) to one kind
    of tribunal and exclude the Superior Court, especially in relation to a claim
    that is not based on any rights conferred by PHIPA.

[41]

I
    also read s. 71, the immunity provision, as explicit recognition that there could
    be proceedings relating to improper use or disclosure of personal health
    information other than those specifically contemplated by PHIPA. That provision
    provides immunity in an action or other proceeding for damages where there
    has been an attempt at good faith compliance with the provisions of the Act. In
    my view, this language indicates that the legislature did contemplate the
    possibility of a common law action for damages in the courts.

[42]

Further,
    to the extent PHIPA does provide for individual remedies, it turns to the
    courts for enforcement. The Commissioner has no power to award damages. It is
    only by commencing a proceeding in the Superior Court following an order of the
    Commissioner that an individual complainant can seek damages, pursuant to s. 65.

[43]

The
    appellants and the OHA argue that s. 65 demonstrates that the legislature
    turned its attention to the role of the courts and specifically limited their
    jurisdiction to assessing damages, hearing appeals on points of law and
    entertaining applications for judicial review.

[44]

I
    disagree. In my view, the only conclusion that can be drawn from the role
    recognized for the courts under s. 65 is that the Commission was not intended
    to play a comprehensive or expansive role in dealing with individual
    complaints.

[45]

I
    conclude that PHIPA provides an informal and highly discretionary review
    process that is not tailored to deal with individual claims, and it expressly
    contemplates the possibility of other proceedings.

(b)

Essential character of the claim

[46]

This
    factor involves an assessment of the extent to which the essential character
    of the claim is regulated by PHIPA, and whether the courts assumption of
    jurisdiction would be consistent with the PHIPA scheme.

[47]

The
    respondents claim does not rely on a breach of PHIPA. The claim as now pleaded
    is based solely upon the common law right of action identified in
Jones v.
    Tsige
. However, the appellants argue that in essence, the respondents
    allegations overlap with obligations and duties prescribed under PHIPA. They
    contend that allowing the respondent to proceed with her common law claim in
    the Superior Court would permit her to circumvent PHIPA and thereby avoid the
    statutory restrictions and limitations the Act imposes.

[48]

I
    disagree with that position. Proving a breach of PHIPA falls well short of what
    is required to make out the
Jones v. Tsige
claim. The elements of the common
    law tort identified in that case, at para. 71, require a plaintiff to establish
    (1) intentional or reckless conduct by the defendant, (2) that the defendant
    invaded, without lawful justification, the plaintiff's private affairs or
    concerns and (3) that a reasonable person would regard the invasion as highly
    offensive causing distress, humiliation or anguish. The first and third elements
    of the common law claim represent significant hurdles not required to prove a
    breach of PHIPA.

[49]

The
    appellants point to two aspects of the common law claim that are arguably more
    lenient. Proof of actual harm is not an element of the tort of intrusion upon
    seclusion. In contrast, under PHIPA, where an individual claims damages in the
    Superior Court pursuant to s. 65, it is necessary to prove actual harm that
    the person has suffered as a result of a contravention of this Act or its
    regulations.

[50]

The
    significance of this apparent difference is reduced considerably by two
    factors. First,
Jones v. Tsige
holds that without proof of actual harm,
    damages for the common law tort are limited to a modest conventional sum: at
    para. 71. Second, the third element of the common law tort requires a plaintiff
    to show that a reasonable person would regard the invasion as highly offensive
    causing distress, humiliation or
anguish
. Section 65(3) of PHIPA provides
    that the court may include it in its award damages for mental
anguish
not
    exceeding alone $10,000. It is not at all clear to me that there is a
    significant difference between the damages recoverable in a common law action
    and the damages the Superior Court can award under s. 65(3) for mental anguish.

[51]

The
    other difference between the two causes of action involves the applicable
    limitation period. Under the
Limitations Act, 2002
, S.O. 2002, c. 24, the
    limitation period for a common law claim is two years. Conversely, s. 56(2)(a)
    of PHIPA contemplates a one year limitation period for initiating a complaint.
    The significance of this difference, however, should not be overstated. Section
    56(2)(b) allows the Commissioner to extend the one-year period if satisfied
    that there would be no prejudice to any person. Moreover, since a claim for
    damages under PHIPA requires a separate proceeding, PHIPA claims will almost
    always, as a practical matter, be brought to court well after the expiry of the
    one-year period. There is also no time limit on self-initiated reviews by the
    Commissioner.

[52]

The
    above comparison leads me to conclude that allowing actions based on
Jones
    v. Tsige
to proceed in the courts would not undermine the PHIPA scheme. The
    elements of the common law cause of action are, on balance, more difficult to establish
    than a breach of PHIPA, and therefore it cannot be said that a plaintiff, by
    launching a common law action, is circumventing any substantive provision of
    PHIPA. The aspects of the common law that may at first glance appear more
    lenient are not, upon closer consideration, significantly advantageous.

[53]

Allowing
    common law actions to proceed in the courts would, however, allow plaintiffs to
    avoid PHIPAs complaint procedure, and I now turn to the issue of whether that
    procedure is sufficient to ensure effective redress.

(c)

Effective redress

[54]

The
    position taken on this appeal by the Commissioner in relation to his discretion
    to deal with individual complaints has a direct bearing on the issue of whether
    PHIPAs dispute resolution procedure provides effective redress.

[55]

PHIPA
    confers on the Commissioner a very wide discretion to decide whether or not to
    investigate a complaint. As I have noted, s. 57(4) provides that the
    Commissioner may decide not to review the subject-matter of the complaint
for
    whatever reason the Commissioner considers proper
 (emphasis added). The
    informal and discretionary review procedure reflects the statutory focus on
    systemic issues.

[56]

The
    Commissioner has submitted to this court that granting him exclusive
    jurisdiction over individual claims would impair his ability to focus on these
    broader issues. As it is put in the Commissioners factum, at para. 44:

The respective mandates of the courts and the [Commissioner]
    are different. The courts are focused on providing remedies to individuals,
    including compensation for tortious conduct, while the [Commissioner] is
    focused on prevention, containment, investigation and the systemic remediation
    of contraventions of PHIPA.

[57]

I
    recognize that the Commissioner has, in the past, taken up individual
    complaints and made orders that could form the basis for a s. 65 claim for
    damages. However, those cases appear to be the exception rather than the rule.

[58]

It
    is, of course, for this court, not the Commissioner, to decide the legal issue
    on this appeal. Nonetheless, I do not think that we can or should ignore the
    clear indication from the Commissioner as to how he intends to exercise the
    discretion conferred by the statute.

[59]

It
    appears entirely likely that many individual complaints that could give rise to
    a proper claim in common law will not result in an order from the Commissioner.
    Where a complaint does not raise systemic issues or where any systemic issues
    have been addressed to the satisfaction of the Commissioner, he may decline to
    conduct a review or decline to make an order that could form the basis for a
    claim for damages. Even if the Commissioner investigates a complaint, his
    primary objective in achieving an appropriate resolution will not be to provide
    an individual remedy to the complainant, but rather to address systemic issues.

[60]

The
    broad discretion conferred on the Commissioner by PHIPA means that complainants
    would face an expensive and uphill fight on any judicial review challenging a decision
    not to review or proceed with an individual complaint.

[61]

It
    was suggested in oral argument that an individual complainant could always ask
    the Attorney General to launch a prosecution pursuant to s. 72 and then use the
    conviction as a basis for claiming damages under s. 65(2). I am not persuaded that
    this argument alleviates the problem. First, it would subject the individual
    complainant to yet another discretionary hurdle. Second, it is hardly a
    persuasive argument supporting the exclusivity of the PHIPA process to say that
    individuals can obtain redress by resorting to the courts by way of a prosecution.

(d)

Intention to create an exhaustive code: Conclusion

[62]

For
    these reasons I am unable to agree with the contention that we should imply a
    legislative intention to confer exclusive jurisdiction on the Commissioner to
    resolve all disputes over misuse of personal health information.

(ii)

Authorities relied on by the appellants

[63]

The
    appellants rely on three discrete lines of authority in support of their
    argument that PHIPA creates a comprehensive code that ousts the jurisdiction of
    courts from hearing common law breach of privacy claims. For the reasons that
    follow, I conclude that these cases are distinguishable and do not alter my
    conclusion that the legislature did not intend for PHIPA to constitute an exhaustive
    code.

[64]

First,
    the appellants invoke
Seneca College v. Bhadauria
, [1981] 2 S.C.R. 181,
    where the Supreme Court of Canada held that the
Ontario

Human Rights
    Code
, R.S.O. 1970, c. 318 (the
Code
),

constituted a
    comprehensive statutory scheme, precluding the recognition of a civil action
    for discrimination based on either the common law or a breach of the
Code
.
    Though there are some similarities between PHIPA and the
Code
considered
    in
Bhadauria
 for instance, both statutes gave the overseeing
    administrative body the discretion not to hear a complaint  the two schemes
    are distinguishable.

[65]

The
    most telling difference is that PHIPA explicitly contemplates the possibility
    of other proceedings in relation to claims arising from the improper use or
    disclosure of personal health information. There was no such statutory language
    in the
Code
. Further, unlike the
Code
, PHIPA does not allow the
    Commissioner to award damages, and instead requires individuals to bring an
    action in Superior Court to seek compensation for any harm caused. This
    undermines the argument that the legislature intended to exclude courts from
    resolving disputes governed by PHIPA. Finally, though both schemes vest the
    overseeing administrative body with discretion, there was no indication in
Bhadauria
that this discretion would be exercised in a routine manner that would
    impede dealing with individual complaints. Indeed, it is difficult to fathom
    how a body enforcing human rights legislation could legitimately take such a
    position given the inherently individual nature of the human rights context. That
    is quite different from the position taken before us by the Commissioner, who
    has interpreted his discretion as enabling him to prioritize systemic issues.

[66]

Second,
    the appellants rely on two cases from the labour relations context,
Weber v. Ontario Hydro
, [1995] 2 S.C.R.
    929, and
Vaughan v. Canada
, 2005 SCC 11, [2005] 1 S.C.R. 146. In
Weber
,
    the Supreme Court considered a provision in the
Labour
    Relations Act
, R.S.O. 1990, c. L.2 which required
    all collective agreements to provide for final and binding arbitration of any
    dispute between the parties arising from the agreement. The majority held that this
    provision conferred exclusive jurisdiction on labour tribunals to deal with such
    disputes.

[67]

In
Vaughan
, a federal government employee
sued the Crown over its failure to pay him an early retirement benefit to
    which he was entitled  under the
Public Service Staff Relations Act
, R.S.C.
    1985, c. P-35. This statute established a grievance mechanism to resolve any
    related disputes and vested the final decision with the Deputy Minister.
    Writing for the majority, Binnie J. accepted that the language in the legislation
    was not strong enough to oust the jurisdiction of courts to entertain the
    claim, but held that they should nonetheless defer to the grievance procedure,
    which provided an adequate and expeditious remedy
.

[68]

Counsel for
Ms. Edgerton-Reid concedes that
Weber
does not apply and that PHIPA does not oust the jurisdiction of the courts, but
    he urges us to adopt the approach taken in
Vaughan
and hold that the
    courts should decline to exercise jurisdiction.

[69]

In my view, both
Weber
and
Vaughan
are distinguishable. Labour grievances and arbitrations represent an accessible
    mechanism for comprehensive and efficient dispute resolution, and consequently
    form an important cornerstone of labour relations. By contrast, the complaints
    procedure under PHIPA is not tailored to deal with individual complaints. Its
    invocation depends upon the Commissioners discretion, and he has made it clear
    that he gives priority to systemic issues. To obtain damages under PHIPA, an
    individual is required to wait for an order of the Commissioner or a conviction,
    and then launch a court action. Importantly, PHIPA contains no language comparable
    to the mandatory arbitration provision in the
Labour Relations Act
, but
    rather expressly contemplates other proceedings.

[70]

Third, the appellants reference decisions from other jurisdictions
      namely, British Columbia and Alberta  where courts
have held that
    privacy statutes occupy the field and preclude resort to common law remedies:
    See
Mohl v. University of British Columbia
,

2009 BCCA 249, 271
    B.C.A.C. 211;
Facilities Subsector Bargaining Association v. British
    Columbia Nurses Union,
2009 BCSC 1562.

[71]

In
    my view, these decisions do not assist the appellants. The provincial privacy
    legislation in British Columbia and Alberta establishes a statutory cause of
    action for breach of privacy. As described in
Jones v. Tsige
, at para.
    54, courts in these jurisdictions are left to define the contours of the
    statutory right to privacy within the parameters of that legislation. In
    contrast, there is no general statutory cause of action for breach of privacy
    in Ontario. The respondents claim is not based upon a breach of PHIPA, but on a
    distinct common law tort. The wrong contemplated by the common law tort of
    intrusion upon seclusion differs in its essential character from a claim that a
    statutory provision has been breached.

[72]

Other
    cases cited by the appellants, including
Macaraeg v. E Care Contact Centers
    Ltd.
, 2008 BCCA 182, 255 B.C.A.C. 126,
Martin v. General Teamsters,
    Local Union No. 362
, 2011 ABQB 412, and
Beiko
, are distinguishable
    on the same grounds. In each of these cases, the plaintiffs claims depended on
    an underlying benefit or obligation conferred by a statute. The statutes at
    issue provided for specific complaint procedures, which had not been followed.
    Therefore, the plaintiffs were precluded from pursuing a common law remedy at
    first instance. As the respondent in this case does not need to rely on PHIPA
    to prove her claim, these decisions are not applicable to the issue at hand.

CONCLUSION

[73]

For
    these reasons, I conclude that the language of PHIPA does not imply a
    legislative intention to create an exhaustive code in relation to personal
    health information. PHIPA expressly contemplates other proceedings in relation
    to personal health information. PHIPAs highly discretionary review procedure
    is tailored to deal with systemic issues rather than individual complaints.
    Given the nature of the elements of the common law action, I do not agree that
    allowing individuals to pursue common law claims conflicts with or would
    undermine the scheme established by PHIPA, nor am I satisfied that the review
    procedure established by PHIPA ensures that individuals who complain about
    their privacy in personal health information will have effective redress. There
    is no basis to exclude the jurisdiction of the Superior Court from entertaining
    a common law claim for breach of privacy and, given the absence of an effective
    dispute resolution procedure, there is no merit to the suggestion that the
    court should decline to exercise its jurisdiction.

[74]

Accordingly,
    I would dismiss the appeal. The respondent is entitled to her costs of the
    appeal, fixed in the amount agreed to by the parties, namely, $24,000,
    inclusive of disbursements and taxes.

Released: R.J.S.  February 18, 2015

Robert J. Sharpe
    J.A.

I agree K. van
    Rensburg J.A.

I agree G. Pardu
    J.A.


