Court dismisses suit involving hospital workers selling new mothers’ contact information to RESP dealer reps

A proposed class action over an incident that involved hospital workers selling the contact information of new mothers to RESP dealer reps has been dismissed by an Ontario court.

The Ontario Superior Court of Justice dismissed an appeal of an earlier decision that refused to certify a class action against several RESP dealers (CST Consultants Inc., Knowledge First Financial Inc. and Global RESP Corp.). The case also involved several former reps at those firms, the Rouge Valley Health System and the “rogue” hospital workers who provided the reps with the patients’ contact information.

The proposed plaintiffs in the case were women who gave birth at certain hospitals that have since been amalgamated into the Scarborough Health Network. The case was on behalf of all women who gave birth at those hospitals between 2009 and 2014.

In an earlier decision, a judge refused to certify the case as a class action, noting that the privacy breach involved the new mothers’ contact information but not confidential medical information.

The plaintiffs appealed, arguing that the motions judge erred in his analysis and refusal to certify the class action.

On appeal, the court upheld the original conclusion: while the information collected and sold by the hospital employees was “personal,” it didn’t represent “private” information.

Information confirming the birth — including the date, place, child’s name and gender — is not private “in that it likely would be shared broadly by the patient…” it said.  “[I]n this case, as the motions judge found, the representative plaintiffs were not shy about publicizing the arrival of their newborn children.”

There could be cases where the disclosure of hospitalization could represent an unlawful intrusion, such as the “unauthorized disclosure of presence in a hospital psychiatric unit or oncology department,” the court noted. But that’s not the situation in this case, the court found.

“His decision that there was an intrusion, but not an intrusion on seclusion is not a palpable and overriding error,” the court said.

The court also noted that the RESP reps didn’t access or disclose the new mothers’ medical records.

“The RESP salespeople were clearly not the ‘intruders’ into the personal affairs of the women who gave birth. That status belonged to the rogue employees,” the court said.

Given that there was no cause of action against the reps, the dealers couldn’t be held vicariously liable either, the court also said.

In 2016, one of the reps involved in the case and a former nurse pleaded guilty to criminal charges involving secret commission arrangements, and two others reps admitted to violating securities law by participating in improper referral arrangements.

James Langton

James is a senior reporter for Advisor.ca and its sister publication, Investment Executive. He has been reporting on regulation, securities law, industry news and more since 1994.