New Tort of Intrusion Upon Seclusion and Electronic Health Records

Abstract

The new tort of intrusion upon seclusion has revamped the area of privacy law in Canada. In addition to creating a private tort action for privacy invasions, the Jones v. Tsige decision has created entirely different risk management concerns for health institutions, who often possess and maintain some of the most sensitive information in society. The modest damage awards in such privacy actions initially did not appear to make them a feasible cause of action when standing alone. However, several recent class actions which include this new tort have demonstrated that not only can intrusion upon seclusion be effectively used in litigation, but that these claims can have significant financial consequences. Health administrators and managers should ensure proper measures are employed to minimize the risk to their institutions.

Keywords: intrusion upon seclusion, privacy law, health law, medical records

JEL Classification: I18, K32, K13