Suing a Regulator for Breach of Privacy

In Khan v. Law Society of Ontario, 2021 ONSC 6019 (CanLII), https://canlii.ca/t/jj1xj a practitioner was disbarred in respect of his billing practices for accounts submitted to legal aid. He had an appeal pending before the Divisional Court on the finding. In the meantime, he commenced a legal action against the regulator (amongst others) for damages. The claim was far reaching. Most of the claims were dismissed because they made bald allegations of bad faith by the regulator without any particulars and because they amounted to a collateral attack on the discipline finding that was under appeal.

There was also an unusual claim that the regulator breached the practitioner’s privacy rights under the “intrusion upon seclusion” tort. The Court said:

The allegations made by the plaintiff to support the claim for violation of his informational privacy relate largely to the publication of his disbarment following the LST hearing, and the use by the LSO Defendants of his medical information during the investigation process for the purposes of obtaining an independent medical expert report. In the absence of a confidentiality order, the LST proceedings are public and their decisions are subject to publication. The plaintiff produced and relied on his own medical evidence in defence to the allegations of misconduct made by the LSO. By doing so, he has waived the right to privacy over those medical records for the purposes of the LSO investigation and the LST/LSAT hearings. Further, the Law Society Act authorizes the LSO and its representatives to disclose confidential information when required in the proper administration of the Act or where necessary in connection with a proceeding conducted under the Act (s. 49.12(2)(a) and (b)). Based on the facts alleged, there is no unlawful invasion into the plaintiff’s privacy pursuant to FIPPA and the claim for the tort of intrusion upon seclusion is struck as disclosing no reasonable cause of action.

This case reinforces the rights of regulators to use otherwise confidential information when performing its functions and to be transparent in its regulatory activities.

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