Defence + Indemnity: February 2018 - II. LIABILITY ISSUES B.

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II. LIABILITY ISSUES

B. Where a hospital employee leaked the fact that the Plaintiff patient to family members, she was held liable for the tort of publication of embarrassing facts and damages of $7,500 were awarded for damages plus $1,500 in punitive damages.
Halley v McCann, 2016 CanLII 58945 (Ont.S.C.S.M.), per Judge McGill  [4258] 
I. FACTS AND ISSUES

Halley sued her half-sister for the tort of public disclosure of embarrassing private facts.

Halley and McCann are half-sisters with a long history of animosity. They had only spoken to each other twice in the preceding 15 years, the last time being at a sister's funeral in 2011 “where friction again resurfaced".

Halley’s health had always been an issue. In addition to physical complaints, she had suffered from depression and anxiety. At her heaviest Halley weighed 500 pounds but in the years before the incident, she worked hard and lost 240 pounds. In 2013 Halley moved back to Kitchener to seek treatment for her health. In September 2013, Halley checked herself into a crisis center (Crisis Respite House, operated by the Waterloo Regional Homes for Mental Health Inc.).

The crisis facility had a privacy policy which restricted and controlled the collection, use, storage and dissemination of personal information and personal health information.

Halley did not know that her sister (McCann) was an intake worker at the facility. When McCann was hired she signed a confidentiality agreement, wherein she agreed “to keep in strict confidence any information regarding any consumer, employee or business of Waterloo Regional Homes for Mental Health Inc”. Halley reviewed a copy of this privacy policy when she was admitted.

On the day that Halley was admitted, McCann arrived for a night shift. It was at that point that McCann realized that her sister had become a resident of the facility. McCann claimed this was an awkward situation and that her sister, Halley “wouldn't want to see her" and claimed not to know exactly what to do. McCann stayed out of sight for the rest of her shift and did not work for any of the following days during which Halley was a resident.

McCann told four others (three outside the facility) about the fact that her sister Halley had been admitted to the facility. She discussed it with a coworker. She called her daughter (a registered nurse) to ask advice as to what she should do. The daughter advised her to go home or to discuss it with a coworker. At the end of her shift, McCann told her husband and her brother Fabion about Halley having been admitted to the facility. Fabion recalled that this was by way of a phone call but McCann testified that she had texted him.

Halley ultimately left the crisis facility feeling much better.

A week after Halley returned home, her brother's former common-law spouse (Lisa) arrived and asked Halley if she had been in a crisis house, without even saying hello first. When Halley, visibly upset and shaken, asked Lisa how she knew, the response was that the brother Fabion had told her.

Halley complained to the crisis facility. Initially, after an investigation the facility denied responsibility. After Halley complained to the Privacy Commissioner, the facility issued an apology letter, acknowledging that McCann had contravened the facility's privacy policy in telling her husband and brother.

Halley’s doctor filed evidence to the effect that Halley had “definitely" become more stressed, anxious and depressed after finding out that others knew about her stay at the facility. Halley and her boyfriend, Dean, became more fragile, anxious and reclusive.

McCann did not apologize.

II. HELD:  For Halley: damages awarded: $7,500 for generals and $1,500 for punitive damages.
 

1.    The Court recognized that the Ontario courts had recently recognized common-law privacy actions, citing Jones v. Tsige 2012 ONCA 32 as recognizing the tort of intrusion upon seclusion. The Court also cited Jane Doe 464533 v. N.D., 2016 ONSC 541 which recognized the tort of publication of embarrassing private facts:

(a)    The Court found that both torts were recognized in Ontario and that neither required proof of pecuniary loss or harm to be awarded damages but that aggravated and punitive damages could be awarded.

2.    The Court held that the existence of a statutory cause of action under Ontario privacy legislation did not preclude damages in a common law suit as the statute was construed as not intending to be an exhaustive or comprehensive compensatory scheme:

20.    These two common law torts exist in addition to the statutory right or cause of action available to a plaintiff under the privacy legislation. The Personal Health Information Protection Act, 2004 S.O. c. 3, Sch A, s. 65 (PHIPA) contemplates mental anguish damages for breaches of statutory duty up to a maximum of $10,000. In Hopkins v. Kay 2015 ONCA 112 (CanLII) (paras 44-45, 73) the Ontario Court of Appeal considered whether the complaints process available under PHIPA displaces the common law authority of the courts to award damages for breach of the statutory duty and found that the legislation is not intended to be an exhaustive or comprehensive compensatory scheme. The complaints process is more suited to systemic breaches and an individual victim retains the right to bring a civil court action for damages.

3.    The Court found that McCann was not credible. She was contradicted by the other evidence. She “seemed unaffected by unsympathetic to the harm and suffering she caused Halley".
 
(a)    The Court rejected the McCann’s claim that her disclosures were carried out out of concern for her sister.
 
(b)    The Court did not McCann's explanations that she made the disclosures to seek advice, out of concern for her sister or to seek comfort from her husband as this was inconsistent with the facts, including the failure of McCann to apologize:
 
34.    I do not believe the defendant’s explanations. Neither the text between the defendant and her daughter nor the co-worker’s evidence is produced at trial to support the “advice” rationale. The “concern” explanation does not match the evidence given by all witnesses about the nature of the relationship between the parties – one of hostility and dislike not one of support or nurturing. It does not match the evidence of the defendant’s husband or brother. Neither was called into action to support either the defendant or plaintiff after being told. The husband says he did not know why he was told because he hardly knew the plaintiff – at first he did not recognize the name. They spoke of it only once for a few seconds. This contradicts the defendant’s evidence that her husband asked her what was wrong because she was obviously upset. The brother, Fabion, reports the amusement with which he was told; he was not asked to help, intervene or to keep the information confidential. In support of this characterization of the defendant’s attitude he offers a text message received from the defendant later in the fall inviting him to Christmas dinner “before his crazy sister” invited him.
 
35.    Finally, during the crisis facility’s investigation the defendant initially denied any disclosure and ultimately only admitted telling her husband. Her failure to tell the investigators about the conversations with her daughter and brother suggests she had no legitimate explanation for doing so, knew it was wrong and tried to hide these two disclosures. I believe she invented the explanations for telling her daughter and brother well after the disclosures. At the time, I believe she was eager to tell the latest news about her sister to the rest of her family in order to embarrass not help her sister.

4.    The Court summarized the elements of the tort of publication of embarrassing private facts, citing Jane Doe 464533 v. N.D. 2016 ONSC 541, at paragraph 46 and the American Restatement (Second) of Torts (2010):.

...It occurs when someone “gives publicity to a matter concerning the private life of another… [and] the matter publicized or the act of the publication (a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.”
 
5.    The Court held that the elements of the tort had been established.

(a)    The Court held that Halley's residency at the crisis facility qualified as an embarrassing private matter. The Court rejected the defence argument that only the diagnosis or treatment of Halley would have qualified (and not the mere fact that Halley was admitted to the facility, which was the only fact disclosed):

26.    The only information disclosed by McCann was that Halley was admitted to the crisis facility. The details of any diagnosis or treatment were not disclosed. McCann suggests this limited disclosure does not amount to an invasion of privacy and argues that she went out of her way to protect the privacy of the plaintiff during her shift.
 
27.    I disagree for at least four reasons. First, personal health information includes information about the providing of health care (s. 4(1)(b) PHIPA), not just the details of diagnosis or treatment. McCann’s disclosure told others that the crisis facility was providing health care to Halley. “Visits” to the facility are expressly listed on the consent form as “confidential and/or personal health information”. I agree with the opinion of the crisis facility director; the staff and facility are under a statutory and contractual duty to keep the provision of care private.
 
28.    Second, the names associated with the facility – Crisis Respite and Homes for Mental Health – provide some information about the mental health status or condition of the individuals who seek treatment there. Therefore the disclosure went beyond just the providing of care but gave some indication of the nature of the condition being treated. This health information was also required to be kept private.
 
29.    Third, Halley considered this a “private matter” – she did not tell anyone in her family and signed consents limiting the access to information to only two people. McCann saw the file and Dean’s name on the paperwork. “Visits” to the facility are expressly listed on the consent form as “confidential and/or personal health information”. McCann knew or should have known that this was a private matter and it was a secret to be kept from other family members. In her evidence and counsel submissions, McCann acknowledges the private nature of the stay when she submits that she did everything she could to protect Halley’s privacy during her shift. She claims to have sought advice, stopped reading the file, remained out of sight and gave away her other shifts, all out of respect for Halley’s privacy. These actions show that prior to disclosure she knew the stay was a private matter to be held in confidence.
 
30.Finally, the confidentiality agreement signed by McCann included a broad undertaking to keep confidential “any information regarding any consumer” – this promise extends beyond just personal health information. It clearly prohibits the health care worker from discussing resident’s information at all. The privacy policy requires a staff member to obtain the consumer’s express consent before giving personal health information or personal information to a “family member who is not a substitute decision maker.” The word “express” is in bold font. In sum, I find that the information disclosed was personal health information, was a private matter concerning the private life of Halley, and was information that McCann was required to keep confidential under her confidentiality agreement and the privacy policy. Disclosure fell below the privacy standard established by the legislation and the crisis facility and forms the basis for tort liability.
 
(b)    The Court found the disclosure to be highly offensive in terms of being “highly offensive to a reasonable person”, especially because the disclosure was made to family members, which the Court considered more offensive than if it had been disclosed to strangers:

31.    To establish liability the disclosure must be highly offensive to a reasonable person, an objective measure of the sensitivity of the disclosed information. It is only logical to interpret this requirement to mean a reasonable person in Halley’s situation. That is a person who has suffered from depression and been admitted to a crisis facility, a person who took steps to ensure that treatment would remain a secret from her family. In this context, disclosure to her family is more offensive than to unknown strangers.
 
32.    It is obvious that health care information is sensitive, more sensitive than other personal information as evidenced by the legislature’s adoption of specialized privacy legislation exclusively for it (PHIPA). Within the health care genre, mental health care information is even more sensitive than physical health information. I take judicial notice of the fact that mental health issues carry a stigma in our society. One only has to watch the countless public service ads that run on television to know that victims often suffer in silence rather than seek treatment, presumably to avoid the stigma assigned to mental illness. I have no trouble finding that a reasonable person would find disclosure of their need for crisis mental health treatment to be highly offensive
 
(c)    The Court held that McCann’s reasons for disclosing information were not of legitimate concern to the public.

(i)    Firstly, the Court rejected McCann’s explanations that she acted to seek advice, out of concern for her sister and to seek comfort from her husband.

(ii)    The Court held that even if those explanations were believable, they would not amount to “lawful justification" for the disclosure:

36.    Even if I believed these explanations (which I do not), they are not “lawful justification” for disclosure. Lawful justification is an expressly identified defence to the tort of intrusion on seclusion (supra para 14), and although not expressly articulated as a defence to the public disclosure tort, I am sure future cases will recognize it for this tort as well. In this case, the explanations provided are not lawful justification for releasing the information to either the daughter or the husband. Both crisis facility’s privacy policy and the consents executed by Halley permit disclosures to those in the patient’s “circle of care” when necessary for treatment of Halley. This “circle of care” is where McCann should have gone for advice and support if she needed some in order to deal with Halley’s care. There is no justification for first going outside Halley’s “circle of care” for advice or support in dealing with a patient.
 
(iii)    Also, the argument that the disclosure to the brother fell within the “legitimate concern to the public" defence was rejected:

37.    As for the third disclosure to her brother Fabion, McCann argues it falls within the “legitimate concern to the public” defence expressly recognized in the public disclosure tort. Even if I believed her which I do not, this explanation would still not justify the disclosure for two reasons. First the privacy policy and the consents executed by Halley at the time of admission addressed this very issue of family member disclosure – only two people were to be told and Fabion was not one of them. The privacy policy identifies limited circumstances for disclosure to family without consent. The only family members that may be told are those designated as substitute decision makers. The public concern exemption should only override the express wishes of the patient in circumstances where the public is at risk of harm or the medical opinion of the treating physician is that it would benefit the patient. As an intake worker, she was not qualified to decide the latter and there was no evidence provided in support of the former.
 
(iv)    The Court concluded as follows with respect to the defence of public concern disclosure:

38.    Finally, I find that the public concern component of the tort is an objective determination and not a subjective belief about the motives of the discloser. The use of the word “legitimate” invokes objective evaluation. There are no facts in evidence that support a legitimate need for any of these individuals to know. Two of the three barely know her and are not involved in her life in any way. Fabion has only limited contact with his sister and was known to be a friend of Dean’s rather than his sister. Therefore, there is no justification for the disclosures made by McCann.
 
6.    The Court found that the sister had acted out of malice. It was held that the disclosures “were intended to diminish Halley in the eyes of her family and cause her embarrassment".
 
7.    The Court found that Halley had suffered compensable emotional harm within the meaning of Mustapha v. Culligan of Canada Ltd., [2008] SCC 27:

41.    General Damages for physiological harm, embarrassment and humiliation are appropriate in this case. McCann argues that Halley had a pre-existing condition; she was already anxious and depressed and no new damage was suffered. McCann relies on Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, 2008 SCC 27 (CanLII) and claims that if new harm was suffered it is an extreme over reaction which disqualifies her from any damage award. McCann suggests only nominal damages of $300 per disclosure.
 
42.    I disagree. Actual emotional harm was suffered by Halley. The doctor’s opinion confirms the worsening of her mental health condition following the public disclosure. In submissions during closing, McCann asks me to disregard the general practitioner’s opinion but did not summon or cross examine the doctor’s opinion nor supply contrary medical expert evidence. Therefore, I accept the opinion of Halley’s doctor as to Halley’s worsened anxiety and depression. It is the only medical expert evidence submitted at trial and was not contradicted.
 
43.    As to the claim that Halley’s reaction is extreme and unusual, again I disagree. It is completely reasonable and foreseeable that the mental health of a patient already suffering from anxiety will deteriorate when someone releases mental health information about them. Unlike Mustapha the withdrawal of Halley is not an extreme, unpredictable or unusual reaction – it is completely reasonable and foreseeable. This is an obvious situation of “take your victim as you find them” – mental fragility was not an unknown or hidden condition which McCann could not have foreseen. McCann knew the mental health status of Halley before she committed the wrongful act and therefore she must take her victim as she found her and (I would add) as she knew her to be.
 
8.    The Court rejected the defence argument that Halley had failed to mitigate her losses by not checking herself into a crisis facility to deal with the fallout. The Court held that the circumstances were “a byproduct of McCann’s humiliation and embarrassment" which made it more difficult for Halley to seek treatment by way of institutional care.

9.    The Court held that this was not a case for nominal damages.

(a)    The Court awarded $7,500 for general damages.

(b)    The Court held that in addition to general damages punitive damages covered the case better than aggravated damages. Halley was awarded $1,500 in punitive damages.
 

III. COMMENTARY

With respect, this decision is questionable on the issue of publicizing the embarrassing facts. In this case, Halley the Plaintiff only disclosed the embarrassing private facts to three people (to whom she was related) outside of the facility. In his seminal work on privacy torts, professor Prosser notes that “it has been agreed that it is no invasion to communicate that fact to the Plaintiff’s employer, or to any other individual, or even to a small group, unless there is some breach of contract, trust or confidential relation which will afford an independent basis for relief”: William L. Prosser, “Privacy” (1960) 48 Cal. L. Rev. 383, at pp. 393 – 394. See also Lextron Inc. v. Travelers Cas. and Sur. Co., 257 F.Supp2d. 1041 (D. Colo. 2003).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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