Canadian Underwriter

Insurer must defend hospital nurse sued for breach of privacy: Court

April 3, 2018   by Greg Meckbach

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Aviva Canada has a duty to defend a nurse who is being sued for privacy breach by a patient whose medical records were accessed in a Simcoe, Ontario hospital, the Court of Appeal for Ontario ruled in a decision released March 28.

The patient, known in court records as J.L., is suing Norfolk General Hospital as well as Nancy Oliveira, a nurse who used to work there. J.L.’s allegations against Oliveira have not been proven in court. Court records indicate that Oliveira was not involved in J.L.’s care at the Simcoe hospital, located about 70 kilometres southwest of Hamilton.

In a separate proceeding, Oliveira was disciplined by the Ontario College of Nurses. In an agreed statement of facts, the College reported that Oliveira accessed health records of about 1,300 clients; for some of these clients, she was not part of the health care team and did not have a “professional purpose” for accessing the health records, the college found.

Oliveira was an additional insured under a “Professional and General Liability and Comprehensive Dishonesty, Disappearance and Destruction Insurance Policy” written for Norfolk General Hospital by Aviva, wrote Justice Markus Koehnen of the Ontario Superior Court of Justice in Oliveira v. Aviva Canada Inc. et al.

The policy insures “all employees of the insured while acting under the direction of the named insured,” Justice Koehnen added.

Aviva argued it did not have a duty to defend Oliveira under the policy because the alleged conduct did not “arise” from the operations of a hospital (i.e. being responsible for the care of the patients), nor could it be considered to be “at the direction of the name insured.” Among other things, Aviva argued that Oliveira’s “conduct did not arise from the Hospital’s operations” because J.L. was not in the nurse’s “circle of care.”

Justice Koehnen’s initial ruling against Aviva was upheld by the Court of Appeal for Ontario.

“By offering coverage for breach of privacy, Aviva was offering coverage for intrusion upon seclusion and was, by definition, offering coverage for highly offensive conduct,” Justice Koehnen wrote. “That must by definition cover access to records by hospital employees outside of the circle of care.”

What Oliveira is alleged to have done “is precisely the sort of conduct” that the Aviva policy “was intended to respond to,” the Court of Appeal for Ontario ruled in its unanimous decision.

The tort of “intrusion upon seclusion” was created by the Court of Appeal for Ontario in a 2012 ruling in Jones v. Tsige. That ruling arose when a Bank of Montreal worker (Winnie Tsige) accessed a co-worker (Sandra Jones)’s banking information for non-work-related reasons.

Jones v. Tsige caught the attention of liability insurers because the lawsuit against Tsige was initially dismissed by the Ontario Superior Court of Justice on the grounds that there was no such tort as intrusion upon seclusion.