In Hopkin v. Kay, 2015 ONCA 112, the Ontario Court of Appeal considered whether the Personal Health Information Protection Act, S.O. 2004, c. 3, Sch. A (“PHIPA”) creates an exhaustive code that precludes an individual from bringing any common law claims in the Superior Court for invasion of privacy rights in relation to personal health information. In its analysis, the Court considered the differences between two potentially applicable limitation periods and whether the differences between them would undermine the PHIPAscheme. The applicable limitation period for a common law claim of invasion of privacy rights (i.e. a claim based on the tort of intrusion upon seclusion) is two years pursuant to the Limitations Act, 2002, S.O. 2002, c.24, whereas section 56(2)(a) of PHIPA provides for a one-year limitation period for initiating a complaint.
The Court of Appeal concluded that allowing a common law action to proceed in court would not undermine thePHIPA scheme because the Information and Privacy Commissioner is able to extend the one-year limitation period if satisfied that the extension would not cause prejudice to any person. Also, since damages claims under PHIPArequire separate proceedings, PHIPA claims are almost always brought to court well after the expiry of the one-year limitation period. For these reasons, among others, the Court concluded that launching a common law action for intrusion upon seclusion in the Superior Court, within the applicable two-year limitation period under theLimitations Act, 2002, would not be circumventing the one-year limitation period contained in PHIPA.