Possible expansions to claims for breach of confidence

In Grant v. Winnipeg Regional Health Authority, 2015 MBCA 44, the Manitoba Court of Appeal has signalled a potential willingness to expand the scope of an action for breach of confidence.

This case involves a tragic and horrible factual situation. Brian Lloyd Sinclair was a person of Aboriginal ancestry who was disabled, confined to a wheelchair and cognitively impaired. He died from an infection of the bladder in an emergency waiting room after waiting there for 34 hours without receiving medical treatment.

CCTV footage of the emergency waiting room revealed that Mr. Sinclair approached the triage area medical staff, was seen by staff members, and then began waiting for medical care with others in the emergency waiting room. During the 34-hour period, on multiple occasions, security staff, patients and visitors to the HSC brought Mr. Sinclair’s deteriorating condition to the attention of medical staff, without response. No medical staff at the HSC approached Mr. Sinclair in the emergency room waiting area until after he was already dead.

His sister, the administrator of his estate, commenced an action on her own behalf and also in her capacity as administrator of his estate, over the alleged disregard of Mr. Sinclair leading up to his death, and the conduct of various defendants shortly after his death.

The plaintiff appealed from the striking out of some of her claims.

The Court of Appeal considered the plaintiff’s standing to bring Charter claims on behalf of the deceased, determined that she did have public interest standing, and remitted those claims for consideration by the lower court. The court noted, at para. 94:

…necessity requires a substitute plaintiff in cases such as this, as the voice of the affected individual has been lost by death, supposedly at the hands of an alleged state actor. The fiduciary duties owed by a personal representative as a trustee make them well-suited to decide whether to advance a Charter claim in circumstances such as this case.

The plaintiff also made a claim for the negligent disclosure of confidential information, seeking damages for the alleged misuse of Mr. Sinclair’s personal medical information by hospital officials during statements to the media after his death in an attempt to deflect blame from itself and its employees. The plaintiff alleged that, as a result, Mr. Sinclair’s family members have suffered distress, public embarrassment and mental anguish. The motion judge determined that a third party cannot sue in negligence for the deliberate release of personal information of another person.

The Court of Appeal noted, at para. 117, that current jurisprudence has recognized the expansion of tort law in dealing with confidential information: “Whether that expansion also encompasses claims by third parties who may also be harmed by an unauthorized disclosure of information is something which remains open.”

The court recognized that the elements required to make out the tort of breach of confidence in current Canadian jurisprudence are:

a) that the information must have the necessary quality of confidence about it;

b) that the information must have been imparted in circumstances importing an obligation of confidence; and

c) that there must be unauthorized use of that information to the detriment of the party communicating it (at para. 118)

The court opined that Canadian law with respect to breach of confidence might expand as it has in England, noting the following:

• It has been expanded to situations where a person knew or ought to have known that there was a reasonable expectation of privacy (see Attorney-General v. Guardian Newspapers Ltd. (No. 2), [1990] 1 A.C. 109 at 281 (H.L); Campbell v. MGN Ltd, [2004] 2 A.C. 457; and Douglas v. Hello! Ltd (No 3), [2008] 1 A.C. 1) (at para. 120); and

• It is not necessarily limited to a claim by the individual whose confidence has been directly breached, but may extend to family of the deceased (see R. v. Broadcasting Complaints Commission, ex parte Granada Television Limited, [1995] EMLR 163) ( at para. 121).

The court also found that the plaintiff might have a claim in tort for intrusion upon seclusion, based on Jones v. Tsige, 2012 ONCA 32, which set out the following elements of the tort:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The court held that it is an open question whether family members, who claim to have suffered as a result of a breach of a privacy interest of another member, are in sufficient proximity to the victim in a tort context and are therefore able to advance a claim in their own right (at para. 127).

For these reasons, the court referred the matter back to the motion court with leave to the plaintiff to amend the pleadings to reflect a cause of action based upon a breach of confidence or intrusion upon seclusion or publicity, using the facts as set out in the statement of claim.

While clearly not a typical business torts case, this case is important for its recognition of potential expansions of tort law in dealing with confidential information.