Misuse of Confidential Medical Information

There are remedies both through the human rights process and civil action for the misuse of medical records and information by the employer.

The Ontario Human Rights Tribunal considered a case in which the complainant, ¹ had admitted his addiction to crack cocaine to his employer. The principal of the company sent an email to a peer of the complainant which stated that he suspected the complainant from stealing and that he was a “former crack head”. This led to the applicant’s assertion that he could no longer work under these circumstances. Two days later, the employer wrote to its dealer contacts with whom the complainant worked and revealed to them the applicant’s past drug addiction.

These communications were used to support an award made for human rights violation of $25,000, as a violation of the right to be free of discrimination due to a disability under Section 5(1) of the Code and also of the harassment provision as in 5(2).

The Ontario Court of Appeal in ² a January 2012 decision considered whether the common law recognized a claim for damages for the invasion of personal privacy.

In this case, the plaintiff Jones had discovered that the defendant Tsige, both of whom worked at the same bank, had used her position to examine the plaintiff’s banking records at least 174 times over a four year period. Tisge had during this period formed a common-law relationship with Jones’ former spouse. The information displayed included transaction details and personal information such as date of birth, marital status and address. The information was not published or distributed in any manner.

When confronted by her employer, Tsige confirmed she knew such conduct was contrary to the Bank’s Code of Business Conduct and Ethics and her professional responsibility.

Tsige successfully moved for summary judgment to dismiss the claim, which was based on the tort of invasion of privacy and breach of fiduciary duty. Jones had also moved for summary judgment which was denied.

The Court of Appeal concluded that it was appropriate to recognize the tort “of inclusion upon seclusion”.

The key features are (1) the conduct is intentional within which is included reckless; (2) the defendant must have invaded, without lawful justification, the plaintiff’s private affairs; (3) a reasonable person would see the invasion as highly offensive causing distress, humiliation or anguish.

To succeed in a damage award, it is not necessary to show proof of harm to a recognized economic interest. The court added that given the intangible nature of the interest protected, a modest sum would likely be awarded. The range was fixed as “up to $20,000”. The factors to be assessed in determining the sum to be awarded, absent a direct pecuniary loss were stated as follows:

1. the nature, incidence and occasion of the defendant’s wrongful act;
2. the effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;
3. any relationship, whether domestic or otherwise, between the parties;
4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

In the instant case, the motions decision was set aside and the plaintiff was awarded $10,000.

It is clear that such a claim could be made for the misuse of health records.