Nova Scotia 'Implicitly' Recognizes Intrusion Upon Seclusion, Provides Related Guidance On Scope Of Class Action Productions

In the recent case of Hemeon v. South West Nova District Health Authority 2015 NSSC 287 ("Hemeon"), the Nova Scotia Supreme Court did two things: (1) arguably recognized the tort of "intrusion upon seclusion" for that province; and (2) the discussed the extent of production obligations in class proceeding with respect to mental distress, which is not part of the tort in Canada, but is in other jurisdictions. The decision also provides guidance on the degree to which productions must be connected to the issues that are common to the class of plaintiffs in the proceeding.

Background

Hemeon concerns a production motion brought by the defendant in a certified class proceeding following a request made to a representative plaintiff, Alicia Hemeon. In the main action, the plaintiffs allege that a former employee of the defendant Health Authority committed the tort of "intrusion upon seclusion" by accessing their medical records in an unauthorized manner at a Nova Scotia hospital. The claim asserts that the defendant is both vicariously and independently liable for the alleged privacy breach. The trial of the common issues is scheduled for April 2016.

Ms. Hemeon was examined for discovery in August 2014. During her examination, she responded to a number of questions about how she felt when she learned about the alleged privacy breach. One such question was whether she had changed her "hospital attending behaviour" as a result of the alleged privacy breach. She acknowledged that she did begin attending other hospitals. The Health Authority then asked for the production of medical records to confirm this answer - a request which Ms. Hemeon's counsel refused. The defendant's motion was brought in order to compel production of the records in dispute.

"Intrusion Upon Seclusion" Comes to Nova Scotia

The tort of intrusion upon seclusion was recognized by the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32. Shortly thereafter, the Supreme Court of British Columbia held in Demcak v. Vo, 2013 BCSC 899 that this tort was not available in BC. because that province's privacy statute, which included a provision for a statutory tort, was a "complete code" and plaintiffs were bound by it. The result of these two decisions was to create a patchwork of provinces where "intrusion upon seclusion" may or may not be recognized. In many provinces, there were enough differences between that province's privacy laws and B.C.'s "complete code" that the question was...