PHIPA Does Not Preclude The Recourse To Common Law For Health Privacy Violations

''With the click of a mouse, personal health records can be accessed by those who have a legitimate interest in properly treating a patient – or they can be accessed for an improper purpose.''

These were the opening words of the Ontario Superior Court in the case of Hopkins v. Kay¹ where Representative Plaintiffs sought to bring a class action suit against a hospital and other defendants, alleging that approximately 280 patient records of the Peterborough Regional Health Centre (the ''Hospital'') were intentionally and wrongfully accessed by the Hospital's staff and others.

The Plaintiffs based their claim on the tort of intrusion upon seclusion or breach of privacy based on Jones v. Tsige, 2012 ONCA 32. The Hospital in turn sought an order from the Superior Court to strike the Plaintiff's statement of claim, taking the position that the essential character of the Plaintiff's claim falls squarely within the scope of the Personal Health Information Act (''PHIPA''),