The Appellant’s final argument was that there was “a material distinction between her intention to obtain the Percocet pills and her intentions regarding the patients’ records” [para 66]. In effect, she tried to argue that her accessing patient records was an “unintended consequence of her intentional conduct to obtain the pills” [para 66]. The Court was not persuaded by this argument. Demme v. Healthcare Insurance Reciprocal of Canada, 2022 ONCA 503.
Reading Time: 6 minutes (approx.)
By: Weston McArthur (Articled Clerk)
The Appellant was nurse employed at the Brampton Civic Hospital who used her position to obtain approximately 24,000 Perocet tablets over a ten-year period, from 2006 until 2016. To do this, she accessed 11,358 patient medical records.
When the Appellant’s actions were discovered, multiple lawsuits were brought against her. The actions were all connected by one main allegation: that the Appellant committed the tort of intrusion upon seclusion. Broadly, this tort relates to the actions of someone who intentionally or recklessly invades the privacy of another person, causing them offense and distress.
The Appellant was considered an insured under her employer’s liability insurance policy, which provided coverage where an insured commits a bodily injury that arises out of an “occurrence”.
A “bodily injury” was defined within the policy in part as follows: “the term ‘bodily injury’ … shall also include injury arising out of: … (c) Invasion or violation of the right of privacy; (d) Mental anguish, injury, shock, humiliation, disease, sickness or disability …” [para 22]. An occurrence was defined as “an accident, including continuous or repeated exposure to substantially the same general conditions, which result in bodily injury or property damage neither expected nor intended from the standpoint of the Insured” [para 23].
The policy also contained several exclusions. The policy denied coverage “[a]rising out of: … (b) Bodily Injury or Property damages expected or intended from the standpoint of the Insured… (e) Bodily Injury, sickness or disease, including death at any time resulting therefrom, arising out of the performance of a criminal act”.
One of the issues before Justice Brown of the Ontario Court of Appeal was whether coverage was applicable in the Appellant’s circumstances. The Appellant submitted three arguments.
Firstly, she argued that the ONCA’s decision in Olivera v Aviva Canada Inc., 2018 ONCA 321, stands for the proposition that “where a hospital’s insurance provides coverage for claims of ‘invasion or violation of the right of privacy’”, coverage is automatically established where a hospital employee “unlawfully [accesses] patient records and information” [para 52]. The Court was unconvinced by this argument because the policies in each of the two cases were different.
Secondly, the Appellant argued that reckless conduct can be unintentional. This argument, if successful, would bring her actions within the definition of an “occurrence” as provided by the policy, bypassing the policy exclusion. In addition, it would mean her actions fail the test for establishing the tort of intrusion upon seclusion. Essentially, the Appellant tried to separate intentional conduct from reckless conduct; however, the Court did not favour this argument because Canadian jurisprudence on reckless conduct treats it akin to intention conduct. Referring to Supreme Court of Canada decisions, Justice Roger noted that “what is typically called reckless conduct [cannot] be regarded as accidental” [para 62].
Ultimately, the Court saw no error in the Motion Judge’s decision, which it upheld.