Omni May Not Include All: Case Comment on Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC

Contributed by Loïc Welch


“The duty to consult is about encouraging governments to consider their effects on Indigenous communities and consult proactively” (para 96)

The Charter of Rights and Freedoms guarantees that every Canadian has a fundamental right to life, liberty, and security. Moreover, as stated by Dr. Tedros Adhanom Ghebreyesus, Director-General of the World Health Organization, “[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”

In Canada, the Crown has recognized and affirmed Indigenous rights, and has a duty to consult whenever governmental action may adversely affect these rights. However, what triggers this duty is being hotly disputed in the courts, as many cases have made their way to the Supreme Court of Canada in recent years.

The Duty to Consult

The relationship between Indigenous peoples and Canada is governed by the honour of the Crown, enshrined in section 35 of the Constitution and includes the duty to consult. This duty binds the Crown to consult Indigenous peoples whenever it contemplates actions potentially infringing Aboriginal rights. Moreover, as detailed in the Haida Nation decision, this duty is triggered even if the right or title potentially exists, but has not yet been determined to exist. The duty cannot be ignored if a consultation is requested. It requires that both parties deal in good faith.

To interpret the honour of the Crown as restricting its responsibility to only matters of Aboriginal rights and titles would run counter to reconciliation goals between the government of Canada and Indigenous peoples. After years of inquiry, the Truth and Reconciliation Commission put forth calls to action to guide the Canadian Government in recognizing its part played in the colonial history with regards to the marginalization of Indigenous peoples. This led to the establishment of the Principles respecting the Government of Canada’s relationship with Indigenous peoples. The sixth principle specifically states that “[t]he Government of Canada recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources” [added emphasis]. With this principle, the government recognizes that their duty towards Indigenous peoples extends beyond the duty to consult on purely Aboriginal rights and treaties. For instance, many Nations live and depend on the lands around them and their interests in these lands have a major impact on their health and general well-being. If the government intends to implement or disband regulations, through legislation, which may have adverse impact on neighbouring Nations, then it seems the duty to consult would be triggered.

Health extends beyond simply what you would go to the hospital for. There is a growing body of research that highlights what are termed “social determinants of health” which comprise social, economic, cultural, and political inequities influencing health outcomes of Indigenous peoples. With this in mind, it’s important to recognize that the colonial history and continuing marginalization of Indigenous peoples has profound effects on their mental, physical, and spiritual well-being. In fact, Indigenous peoples, both on reserve and off-reserve, suffer from serious health issues (e.g. increased rates of malnutrition, suicide, mental health issues, infectious diseases) as compared to the general Canadian population. While the Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 case, outlined in the following section, appears to deal exclusively with issues of Aboriginal rights and treaty rights, the repercussions are far-reaching and set precedent for immunizing legislation from the duty to consult. This duty has been recognized and circumscribed to executive actions. In other words, the government only has an obligation to consult Indigenous peoples where it is taking direct action, and is absolved of this duty when developing legislation.

The government only has an obligation to consult Indigenous peoples where it is taking direct action, and is absolved of this duty when developing legislation.

Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40

In 2012, the Government of Canada introduced two omnibus bills setting the course on environmental protection; no Indigenous Nations were consulted before the introduction of these bills. The Mikisew Cree First Nation brought an application for judicial review, stating that because of the potential impact of the omnibus legislation on their treaty rights, the Crown had a duty to consult in accordance with s. 35 of the Constitution.

The duty to consult is context-dependent and requires a proportionate consultation to the degree of infringement on the alleged right. In this case, the Mikisew Cree Nation contended that the legislation threatened their right to hunt, trap, and fish on their traditional territory—which have core implications to the way of life and health of the Nation. These rights were recognized and guaranteed by the Crown in Treaty 8, and the alleged breach by the omnibus bill would require “deep” consultation, proportionate to the infringement.

The reviewing judge agreed with the Mikisew, stating that the duty to consult had been triggered. However, the Federal Court of Appeal disagreed and found that the reviewing judge erred by reviewing legislative action, which is immune from review. The Mikisew appealed the decision to the Supreme Court of Canada. The majority concluded that duty to consult is only recognized and circumscribed to executive action. In other words, the government only has an obligation to consult Indigenous Nations where it is taking direct action, and not when developing legislation. The majority explained that the separation of powers found in the Constitution favours minimal interference from one branch of government to another (i.e. legislative, executive, and judiciary). The majority stated that “[a]pplying the duty to consult doctrine during the law-making process would lead to significant judicial incursion into the workings of the legislature [para 38].” Moreover, the recourses used to mend a breach of the duty to consult would amount to undue judicial interference in the law-making process.

The Honourable Justices Abella and Martin JJ., concurring in-part, expressed their concern about the majority’s reasoning when it came to legislative immunity from judicial review in situations where the duty to consult is potentially breached. They contended that recognizing this immunity would essentially create a “gap in the s. 35 framework” and leave “Aboriginal rights-holders vulnerable to the same government objectives carried out through legislative, rather than executive, action [para 79].” The Justices continued, stating that the Crown was bound to its honour in all relations with Indigenous peoples and that the principle of parliamentary sovereignty does not absolve the Crown from consulting when potential rights or interests are at stake.

Commentary & Implications

The governing principles that guide the relationship between the Crown and Indigenous peoples in Canada denote the importance of respecting already-established treaty rights and Aboriginal rights. However, there is also a contention that the interests of Indigenous peoples extend beyond simply these categorized rights.  In the third governing principle, it is stated that the honour of the Crown also ensures that Indigenous peoples are to be treated with respect like all other Canadians. Importantly, the goal of these principles is to recognize a duty of “good faith, the rule of law, democracy, equality non-discrimination, and respect for human rights.” Do Indigenous interests and human rights not include a fundamental right to health, such as that recognized by the World Health Organization? The Supreme Court of Canada, in Mikisew case, restricts the duty to consult to direct action by the government, rendering legislative direction which directly threatens many Indigenous peoples’ way of life immune from judicial oversight. In this case, the omnibus bills will weaken the protections in place for natural resources and food sources for the Mikisew Nation, thereby threatening their livelihood and other interests, such as health, which were previously protected by treaty.

Loïc Welch is a Senior Online Editor of the McGill Journal of Law and Health and a second-year B.C.L./LL.B. student at McGill University’s Faculty of Law. Loïc holds a M.Sc. in Forensic Psychology from Maastricht University (Netherlands), was a research assistant at the Douglas Mental University Institute in Montreal, and interned at the Professional Clinical and Forensic Services, a part of the Institute on Violence, Abuse, and Trauma in San Diego, California.

Stewart v Elk Valley Coal Corp., 2017 SCC 30

Contributed by Jenny Wang

Earlier this year, the Supreme Court of Canada confirmed and clarified the legal regime governing discrimination in the workforce based on disability pursuant to s.7 of the Alberta Human Rights Act (Act). In Stewart v. Elk Valley Coal Corporation, the majority of the court upheld the Alberta Human Rights Tribunal’s decision that the termination of a cocaine addicted employee did not constitute discrimination in the workplace. There has been a lot of discussion regarding the implications of the majority’s decision. Some believe that its practical effect would be to deprive drug-dependent employees of human rights protection in the workplace, while others argue that the highly dangerous nature of the work environment necessitated such a decision.

Mr. Stewart worked in a mine operated by Elk Valley Coal Corporation (the employer). As the mines were extremely dangerous, workplace safety was a primary concern for Elk Valley Coal Corporation. The employer established a policy requiring employees to disclose whether they had any drug dependencies or addiction issues. Upon disclosure, these employees would be offered treatment from the employer. In addition, the policy specified a “no free accident” rule such that if one were to be involved in a workplace accident and was subsequently tested positive for drug use, the employee would be terminated immediately if he or she had failed to disclose the addiction.

After being involved in a workplace accident, Mr. Stewart was tested positive for drugs and admitted that he was addicted to cocaine. Nine days later, Elk Valley Coal Corporation terminated Mr. Stewart. As addiction is a recognized disability under the Act, Mr. Stewart argued that the termination constituted discrimination based on disability pursuant to s.7 of the Act.

To claim discrimination under the Act, the plaintiff must first show a prima facie case of discrimination. To do so, the employee must prove: “(1) a disability which is protected under the Act; (2) adverse treatment with regard to his employment or a term of that employment; and (3) that the disability was a factor in the adverse treatment.” Once a prima facie case is established, the onus shifts to the defendant to show that the employer accommodated the employee to the point of undue hardship for the employer.

Alberta Human Rights Tribunal Decision

The tribunal held that Mr. Stewart failed to establish prima facie discrimination. The tribunal relied on expert evidence to conclude that Mr. Stewart was in fact addicted to cocaine at the time of the incident. Moreover, it also considered Mr. Stewart’s termination to be adverse treatment. However, the tribunal was of the opinion that the disability was not a factor in the termination and therefore Mr. Stewart failed to meet the three-step test to establish prima facie discrimination. It argued that the employer would have terminated Mr. Stewart regardless of whether he was an addict or a casual user of cocaine under the established policy. Mr. Stewart argued that his denial of his addiction prevented him from disclosing his condition prior to the incident. However, the tribunal dismissed this argument, holding that Mr. Stewart’s denial was irrelevant because he had the capacity to comply with the policy’s terms and decide not to take drugs prior to work.

Although the tribunal recognized that the distinction between termination due to disability and termination due to failure to comply with policy may appear to be superficial, it nevertheless found that Mr. Stewart’s termination was based on noncompliance with the policy and not because of his disability.

The Alberta Court of Queen’s Bench and the Alberta Court of Appeal both upheld the Tribunal’s decision.

Majority Opinion

McLachlin C.J., writing for 6 judges of the Supreme Court, dismissed the appeal. In the analysis, the majority showed deference to the tribunal’s decision, stating that the court’s role is to determine whether the tribunal’s judgement was within a range of possible and acceptable outcomes. The court deemed that the decision was in fact reasonable in the circumstances as there was evidence supporting the tribunal’s conclusions.

The majority recognized that in some cases, drug and alcohol addiction may affect one’s ability to comply with rules, while under other circumstances addiction does not. In the former scenario, the breach of workplace rules will be inextricably connected with the addiction whereas in the latter, the noncompliance would not be associated with the addiction. In this case, the majority concluded that the facts do not support the conclusion that Mr. Stewart failed to comply with the policy due to his addiction.

Furthermore, the majority refused to assess whether the employer’s termination decision was stereotypical or arbitrary. McLachlin C.J. believed that to add a fourth step would result in shifting the focus to determining whether there was discriminatory intent rather than discriminatory impact.

Concurring Opinion

Unlike the majority, Moldaver J. and Wagner J. believed that there was prima facie discrimination. However, this discrimination was justified because Elk Valley Coal Corporation could not further accommodate Mr. Stewart without incurring undue hardship.

According to these two judges, the residual control that Mr. Stewart had on his decision to use cocaine reduced the extent to which his addiction contributed to the termination but did not eliminate it as a factor. Therefore, Mr. Stewart’s addiction was still a factor in the adverse treatment. However, the concurring judges were of the opinion that the employer reasonably accommodated Mr. Stewart. As the mines are extremely dangerous, the policy sought to deter employees from using drugs such that it would affect their work and result in dangerous working environments. Had Elk Valley Coal Corporation not terminated Mr. Stewart and provided him with a less serious consequence instead, the deterrence effect of the policy would be greatly diminished. Therefore, Moldaver J. and Wagner J. found Mr. Stewart’s immediate termination to be reasonable in the circumstances.

Dissenting Opinion

Unlike the majority and concurring judges, Gascon J. found Mr. Stewart’s termination to be discriminatory. Gascon J. focused on the stigma that exists surrounding those who are addicted to drugs: “Still, stigmas surrounding drug dependence – like the belief that individuals suffering from it are the authors of their own misfortune or that their concerns are less credible than those of people suffering from other forms of disability – sometimes impair the ability of courts and society to objectively assess the merits of their discrimination claims. These stigmas contribute to the ‘uneasy fit of drug addiction and drug testing policies in the human rights arena’ noted by the Alberta Human Rights Commission.”

For Gascon J., a policy resulting in immediate termination prima facie discriminates against those who are dependent on drugs. Moreover, the two types of accommodations that Elk Valley Coal Corporation provided Mr. Stewart – namely, treatment had he disclosed his addiction prior to an accident and the possibility for him to reapply to the corporation after participating in a rehabilitation program – did not justify the discrimination.

The first accommodation was not accessible to Mr. Stewart because at that time, he was unaware of his dependency, a symptom of his addiction. Furthermore, the second option does not constitute accommodation for the purposes of this case. Reasonable accommodation requires the employer to provide options for the employee while he or she is still an employee, rather than giving him or her the option to reapply after the fact. These two options failed to consider Mr. Stewart’s circumstances, and therefore, the second prong of the test was not met.


In this case, the court reiterated the two-pronged test used to establish a case of discrimination based on disability under the Act. Although the majority did not the change the legal regime, their application of the law have left some with a heavy heart. In effect, the mere existence of addiction does not establish prima facie discrimination if the court concludes that one was terminated due to noncompliance of workplace policies. Although the highly dangerous nature of the work was an important consideration, some argue that the court adopted a narrow interpretation of addiction.


Jenny Wang is a third-year student in the B.C.L./LL.B. program at McGill University, Faculty of Law and is a Senior Online Editor with the McGill Journal of Law and Health. Prior to starting at McGill, Jenny completed the Arts and Sciences program at Marianopolis College.

Saadati v Moorhead, 2017 SCC 28

Contributed by Pouya Dabiran-Zohoory


Canadian Tort law has developed to require four broad criteria to satisfy a claim in negligence: 1) A duty of care which is owed to the plaintiff, 2) a breach of that duty which, 3) leads to damages, and 4) a legal and factual causal relationship. Historically, the common law has been hesitant to recognize non-physical injury as compensable, with additional requirements for proving psychiatric injury. Canadian common law has been shifting away from this requirement, with both the Mustapha v Culligan (Mustapha) decision in 2008 and the recent decision of Saadati v Moorhead (Saadati) in 2017, discussed here. Saadati has made it less onerous for plaintiffs to prove “psychiatric” injury.

The main issue in Saadati was defining “mental injury” in a claim of negligence, and deciding how that can be determined to exist in court. More specifically, the issue was whether a claim of mental injury must conform with what an expert witness from the medical community has defined as a psychiatric injury, or whether the determination necessarily belongs to the trier-of-fact.

Facts and Judicial History

The plaintiff, appellant to the Supreme Court of Canada (SCC), was involved in a car accident when his tractor-truck was struck by a vehicle driven by the defendant, the respondent. Although the appellant’s truck was damaged, he seemed uninjured. This accident was the second in a series of five accidents that the appellant suffered between the years of 2003 and 2009. The appellant sued the respondents, the three parties involved in the first three accidents, for non-pecuniary damages and past income loss, before suffering the two later accidents.

At the Supreme Court of British Columbia, the respondents collectively admitted liability for the accidents but took the position that the appellant did not suffer any damage. The trial judge concluded the appellant had not suffered any physical damages, but had suffered “psychological injuries, including personality change and cognitive difficulties” based on testimonies of friends and family of the appellant. The British Columbia Court of Appeal decided that the appellant had failed to prove he had suffered a medically recognized psychiatric or psychological illness or condition, and therefore no injury, holding that such illness or condition must be demonstrated by “expert medical opinion evidence”.


The court began the analysis with a look into how the common law has historically viewed negligently caused mental injury. The judgement outlined the early common law’s “suspicion and sometimes outright hostility” toward such claims. The court showed how this skepticism continued into the past century by highlighting that mental injury was not compensable unless accompanied by physical injury. This, along with further barriers to recovery outlined in common law cases surrounding classes of victims and different types of proximity, were used to show the how difficult recovery has been in common law jurisdictions globally.

The court differentiated Canadian common law developments by citing Mustapha as the leading authority for the requirements to recovery for mental injury which held them to be no different than the “criteria applicable to any successful action in negligence”. The court held that the additional barriers to recovery for mental injury weren’t “based on legal principle, but on policy […] founded upon dubious perceptions of, and postures towards, psychiatry and mental illness in general: that mental illness is subjective or otherwise easily feigned or exaggerated; and that the law should not provide compensation for trivial matters”.

The court took issue with the premise that to compensate for mental injury, a plaintiff would need to obtain relevant expert testimony from the medical field as proof that they have suffered a “clinically diagnosed, recognizable psychiatric illness”. The court emphasized that to confine compensable mental injury to conditions identifiable with these diagnostic tools is suspect as a matter of legal methodology, and that the law is not concerned with accurate diagnoses, but rather with “symptoms and their effects”.

Responding to potential criticisms of the judgement leading to indeterminate liability, the court emphasized that the framework for negligence – particularly the proximity analysis in the duty of care component – will satisfactorily contain potential liabilities. In a transsystemic fashion, the court drew a comparison to Québec Civil law which allows compensation for “moral” injury under article 1457, to show that liability can still be contained.

The court also took issue with treating mental injury and physical injury as distinct under the law. The concern was that requiring a claim of mental injury in negligence to be classified as such in the medical community, but not requiring the same condition for physical injury claims, would lead to “less protection [for] victims of mental injury” and “for no principled reason”.

Having said this, the court was cognizant of the difference in nature between mental and physical injuries – that the latter is more readily apparent than the former. In discussing this, the court made clear that even without requiring expert testimony to prove mental injury, the courts will still only compensate for mental injury which “rises above the ordinary annoyances, anxieties, and fears that come with living in civil society”.

Lastly, the court was very clear in maintaining that expert testimony can still be helpful in determining whether or not mental injury has occurred, by determining, for example, how seriously the plaintiff’s cognitive functions were impaired. The court even went so far as to say that not adducing relevant expert evidence to assist the triers-of-fact can run the risk of damaging plaintiffs’ cases. Nevertheless, the court reiterated that, while expert testimony may help a claimant prove the existence of mental injury, it is not required as a matter of law.

The court found the trial judge to have been correct in their application of the law, and found that mental injury had occurred even without the existence of expert testimony.


The court’s primary concern in Saadati seemed to be the abdication of judicial responsibility in cases of negligence causing mental injury. Specifically, the court repeatedly mentioned how classification becoming a necessary component of the law of negligence would be problematic.

It is unclear in the judgement, however, why it is not possible to take into account expert testimony regardless of whether the expert believes that the plaintiff’s injury falls within a specific classification under diagnostic lists such as the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) and the International Statistical Classification of Diseases and Related Health Problems (“ICD”) which were mentioned in the case. The court’s concern with these diagnostic lists not always being at the edge of scientific development in the field are reasonable. However, if this is the primary concern, it is unclear why an expert cannot still be required to inform the deliberation over whether psychiatric injury has occurred, based on that expert’s understanding of the current state of knowledge. Justice is important, and therefore it is equally important that there not be a miscarriage of justice based on faulty assumptions, which the court itself emphasized earlier in the case.

It is possible that the court wished to expand the scope of compensation for recovery of mental injury to include not only psychiatric harm, but also pure emotional harm, which the courts have historically not allowed compensation for, unless accompanied by physical injury. This isn’t objectionable from the perspective of redefining what constitutes justice in a case of negligence.

However, even if the courts intend to treat psychiatric and pure emotional injuries as the same under the umbrella of “mental injury”, how will the courts differentiate between mental injuries which rise “above the ordinary annoyances, anxieties, and fears that come with living in civil society”, and others which do not? As Dr. Stephen Smith notes, it could be problematic to conflate emotional harm with psychiatric harm, since the Anns-Cooper test for duty of care developed in Cooper v Hobart is not designed to limit liability based on the nature of the injury.

Perhaps using the term “mental harm” instead of “mental injury” would be helpful in alleviating some confusion. The court specified that they are concerned with “symptoms and effects”. An injury leads to symptoms and effects which cause harm to an individual, and so the true justiciable question may be whether the plaintiff suffered mental harm rather than a mental injury, which is a question a trier-of-fact may be better able to address without assistance from a medical expert. This is because the question would focus on how the plaintiff has been negatively affected, rather than diagnosing the injury leading to those effects.

Nonetheless, the precedent set by this case may help alleviate access to justice concerns for plaintiffs who cannot afford experts but have suffered very real mental harm, for which they should be compensated.

Pouya Dabiran-Zohoory is a Senior Online Editor with the McGill Journal of Law and Health, with a keen interest in sustainable development, specifically with a focus on climate change and its effects on human and animal health. He holds a Bcomm in law and business from Ryerson University. Since he joined the Faculty of Law at McGill University in 2016, he has taken an interest in how the common law, civil law, and regulations address health issues.

Thompson v Ontario (Attorney General), 2016 ONCA 676

Posted By Liam Harris


In 2000, the Ontario legislature introduced a series of amendments (Brian’s Law) to the Mental Health Act and the Health Care Consent Act, broadening the criteria for civil committal and creating a community treatment order (“CTO”) regime in Ontario. Motivated by the murder of media personality Brian Smith by a man suffering from untreated schizophrenia, the CTO regime is a form of compulsory psychiatric treatment imposed on individuals fulfilling prescribed criteria by their doctors. Patients, usually suffering from schizophrenia or related disorders, are ordered to comply with their treatment plan and face the possibility of involuntary hospitalization if they fail to agree to or to comply with the order.

CTO regimes and other forms of out-patient committal have attracted considerable legislative attention in recent decades. As mental health systems shift away from large-scale institutionalization, community treatment is seen by some as a favorable middle ground that provides people with the assistance they require without subjecting individuals to onerous involuntary detention. Detractors, however, point out that attaching the looming threat of committal to treatment plans risks broadening the scope of forced treatment. The delicate balance that needs to be struck between individual autonomy and enthusiasm for treatment in this type of regime invites constitutional scrutiny.

The Application

The application in this case, brought on behalf of Karlene Thompson by the Empowerment Council, challenged the CTO regime as an unjustifiable infringement of various Charter rights, primarily under section 7. The application judge found the scheme constitutional.

The central issues before the Ontario Court of Appeal included whether the applications judge misapplied the principles of fundamental justice, failed to properly consider the purpose of the legislation, or erred in his analysis of ss. 9, 10, 12 and 15 of the Charter.

The Appeal

The Principles of Fundamental Justice

The Court of Appeal affirmed the trial judge’s finding that the impugned provisions were not arbitrary, overbroad nor grossly disproportionate. In coming to this conclusion, the Court placed a great deal of emphasis on the fact that the CTO scheme is only applied following a highly specific assessment of a patient’s condition and treatment needs, a factor tied to the public health and public safety goals of the legislation. The personalized assessment process was found to minimize any risk that the application of CTOs would be arbitrary, overly broad or grossly disproportionate.

The Court also endorsed the trial judge’s refusal to delve too deep into the policy rationale of the scheme in light of contradictory evidence. The Court held that the available evidence reasonably supported legislative action and did not support a finding of arbitrariness, overbreadth or gross disproportionality.

The Legislative Purpose

The appellants submitted that the purpose of Brian’s Law was to protect public safety, and as such could not be constitutionally valid since there was no correlation between mental illness and violence. The Court of Appeal rejected this argument on the basis that the public safety purpose cannot be viewed in isolation from the purpose to improve mental health treatment.

The CCLA argued that improved treatment could not be a valid legislative objective because the treatment offered in the form of a CTO is coerced, in the sense that if a patient does not consent they face involuntary committal. The Court found this argument insupportable, distinguishing the effects of forced treatment from the purpose of improved treatment.

Further, they noted that coerced treatment can be a valid legislative objective in some circumstances and that since individuals subject to the CTO will meet the criteria for involuntary committal, the less restrictive CTO scheme does not amount to improperly coerced consent.

Other Sections of the Charter

The appellants’ arguments related to ss. 9, 10 and 12 replicated their section 7 arguments and were quickly dismissed by the Court of Appeal.

The Court of Appeal also agreed with the application judge that Brian’s Law was not discriminatory against those with mental disabilities for the purpose of s. 15(1). The detailed personal assessment provided for in the CTO scheme was held to be the “antithesis” of discrimination in the sense that nothing about the orders are based on presumed characteristics and the patient’s views are given priority in the assessment. The fact that this assessment process itself may be informed by discrimination in its application was rejected for a lack of factual basis.


Thompson provides a strong endorsement of the constitutionality of CTO schemes. The fact that orders are issued further to an individualized assessment, and purport to serve not only the interests of the broader community but also of the patient, appears to have insulated the legislation from constitutional violation. However, CTOs continue to generate controversy across Canada as provincial health systems grapple with whether and how to approach their implementation. Amid a rapidly growing number of CTOs in effect in Ontario, some experts warn against potential abuses. This case may move the discussion around CTOs from the constitutional rights of patients to the design and implementation of the scheme.

Personal Health Data Breaches in Hopkins v Kay, 2015 ONCA 112

Posted By Jey Kumarasamy


The Ontario Court of Appeal’s decision in Hopkins v Kay involved a proposed class action proceeding against a hospital for the unauthorized access of personal health information by its employees.

The health information of the respondent, Erkenraadje Wensvoort, was improperly accessed by employees at the Peterborough Regional Health Centre (“hospital”). She was one of the 280 patients who were notified by the hospital, as required by Ontario’s Personal Health Information Protection Act (“PHIPA”), that the privacy of their personal health information had been breached. The respondent feared that her ex-husband, who had hurt her in the past, had orchestrated the breach in an attempt to locate her.

As a result, the respondent brought forward a common law claim for intrusion upon seclusion against the hospital and some of its employees.

The appellants sought to have the action dismissed on the grounds that PHIPA is an exhaustive code, which precludes the Superior Court from entertaining any causes of actions external to it, including those found in the common law.

The motion judge dismissed the appellants’ motion and allowed the respondent to bring her claim in the Superior Court.

The issue on appeal was whether the respondent is precluded from bringing a common law claim for intrusion upon seclusion in the Superior Court on the basis that PHIPA creates an exhaustive code. The Information and Privacy Commissioner of Ontario (“Commissioner”), who is responsible for the administration and enforcement of PHIPA, intervened in support of the respondent’s position.

Court of Appeal’s decision

The Court of Appeal concluded that PHIPA does not preclude a common law claim for intrusion upon seclusion. Their analysis centered on whether there was a legislative intention to create an exhaustive code with regards to PHIPA.

As there was no such explicit intention stated in PHIPA, the Court turned to the three factors listed by Cromwell J.A. in Pleau v Canada that should be considered when determining whether the legislature intended to create an exhaustive code.

First, the Court assessed whether “the process for dispute resolution” established in PHIPA is consistent with exclusive jurisdiction. To this extent, the Court recognized that the Act contains a “comprehensive set of rules about the manner in which personal health information may be collected, used, or disclosed across Ontario’s health care system.” However, the sections regarding the resolution of disputes give much discretion to the Commissioner, and the language (e.g. s. 57(4)(b) and s. 71) specifically contemplates the possibility that certain complaints related to personal health information may be the subject of a procedure that falls outside the scope of PHIPA.

Second, the Court looked at the “essential character” of the claim and asked whether the court’s assumption of jurisdiction would be consistent with the PHIPA scheme. The respondent’s claim for intrusion upon seclusion was based on the common law tort recognized in Jones v Tsige, and does not depend on PHIPA. The Court did not accept the appellants’ argument that allowing the respondent to pursue this cause of action would effectively amount to a circumvention of the statutory restrictions and limitations contained in PHIPA. Instead, the Court held that the respondent’s burden was higher now as a result of the additional elements required by a Jones v Tsige claim. The Court did acknowledge, however, that proof of actual harm is not required under the common law claim, unlike under PHIPA. Additionally, the alleged difference in the limitation periods of the two causes of actions was held to be insignificant in practice.

Finally, the Court assessed the Act’s capacity to afford “effective redress”. The Court once again highlighted the informal and discretionary nature of the review procedure under PHIPA, especially the Commissioner’s prerogative, pursuant to s. 57(4), to not review a complaint for any reason he or she considers appropriate. At this stage, the Court gave significant weight to the Commissioner’s own submission that “granting him exclusive jurisdiction over individual claims would impair his ability to focus on broader issues.” This, along with the Court’s own determination that the review procedure reflects a statutory focus on systemic issues, led the Court to postulate that it is plausible that many complaints of merit would never result in an order from the Commissioner.

Thus, the Court concluded that there was no legislative intention to create an exhaustive code and confer exclusive jurisdiction on the Commissioner.


The frequency and severity of personal health data breaches seem to be following a dangerous trend in Canada. The privacy commissioners of both British Columbia and Alberta have recently reported that health workers “snooping” on private data is among the most common breaches, and that “improper access of health information is becoming an epidemic.” In this context, the Court’s decision in Hopkins v Kay is a significant one. Allowing civil actions to be commenced outside the regime established by PHIPA for breach of personal health information in Ontario increases the legal options available to plaintiffs and potentially increases the legal risk for health information custodians.