Western Health argues it is not responsible for employee breaching privacy

Gary Kean gkean@thewesternstar.com
Published on February 6, 2014

Western Health’s lawyers will continue to try and convince Justice William Goodridge that its client should not be held responsible for one of its employees breaching the privacy of more than 1,000 patients today.

The certification hearing to determine if a class-action lawsuit filed against Western Health can proceed began before Goodridge in the Supreme Court of Newfoundland and Labrador in Corner Brook Thursday.

The lawyers representing the plaintiffs have made their submissions as to why the class-action should go ahead. Dan Boone, Western Health’s lead counsel, began his argument Thursday afternoon and will pick up where he left off this morning.

Boone submitted the class action should not be certified by the court because, under provincial privacy legislation, action would have to be taken against the employee who inappropriately accessed the files. That’s because the law stipulates that the breach has to be shown as intentional, which the health authority argued it should not be responsible for.

“Western Health did not do anything intentionally to the people involved and the privacy act claim is an intentional claim,” Boone said at the conclusion of court Thursday. “It has to allege the defendant did something intentionally.”

The class-action lawsuit was launched in light of a breach of privacy involving the files of 1,043 people. Donna Colbourne, a clerk at Western Memorial Regional Hospital was fired from her position in 2012 after she allegedly inappropriately accessed patient files while on the job.

Affected patients were notified by Western Health of the breach in the summer of 2012, following an internal investigation that reviewed accessed files from June 2011 to May 2012.

Both Colbourne and Western Health were originally listed as defendants. However, Colbourne was later removed as defendant.

Goodridge has been tasked with deciding if the matter should proceed as a class-action lawsuit.

The allegation is that Western Health didn’t do enough to protect its patients.

“They had rules and policies in place that ought to have precluded the person from taking the steps that were taken,” said Boone as to why Western Health shouldn’t be responsible for what Colbourne did. “That’s what they were required to do and that’s what they did.”

In addition, Boone argued there is no basis for any awarding of damages in this case as argued by the plaintiffs.

“(The plaintiffs) were annoyed and embarrassed and humiliated and we aren’t denying any of that,” said Boone. “But, in law, those feelings and emotions aren’t compensated. As a consequence, that is the main basis for their action. So, it ought not to be certified as a class action because, at the end of the day, the damages they claim for are not the kind of damages that ought to be awarded.”

Bob Buckingham, the lead counsel for the plaintiffs, does not agree. He has not put an exact dollar figure on the damages they are seeking, but said it could range from $500 to $30,000, depending on the respective circumstances of each plaintiff.

Besides that, his chief argument is that Western Health should be held accountable for Colbourne’s actions.

“Even though the hospital itself may not have breached the authority or given the information out, when an employee does it in the course of his or her employment, the hospital is vicariously responsible and liable for that employee’s actions,” Buckingham said.

He said Western Health cannot gather and hold such a vast amount of personal information and not be held responsible for how it is accessed.

“That’s the nub of it,” said Buckingham. “Along with the ability to collect, goes the responsibility to protect and they have failed at that.”