Settlement reached in privacy breach class-action lawsuit against Western Health

CORNER BROOK — After 10 years of court appearances, compiling disclosure material, interviews and discoveries, a settlement has been reached in a class-action lawsuit involving a privacy breach at Western Health.

The matter had been set for a two-week trial in Newfoundland and Labrador Supreme Court in Corner Brook, but at the start of the trial on Monday, Oct. 3, Justice Peter Brown was informed the parties had reached a settlement late Friday, Sept. 30.

The privacy breach at the centre of the class-action was announced by Western Health in August 2012. At the time, the health authority revealed that a former clerk had inappropriately accessed the files of 1,043 patients from June 2011 to May 2012.

The class action was launched on Aug. 17, 2012, with Barbara Hynes listed as the representative plaintiff. Valerie Dyke was later added as another representative plaintiff.

Western Health and the former employee, Donna Colbourne, were originally named as defendants, but Colbourne, who pleaded guilty to a charge under the Personal Health Information Act and was fined $5,000 in provincial court in September 2014, was later removed.

The trial had been set for last year, but had to be postponed because of the cyberattack on the province’s health authorities.

Hynes’ lawyer, Bob Buckingham, said it probably should not have taken as long as it did to reach a settlement. He said the two sides did engage in mediation, but were far apart on the issue.

“Perhaps it should have happened earlier, but sometimes these matters only settle on the courthouse steps,” said Buckingham.

“Maybe they were prepared to come to the table last year, but things got set aside because of the cyberattack.”

Discussions started again late last week and culminated in the settlement.

Details of the settlement, including the amount of restitution for class members, cannot yet be provided.

Buckingham said it will include a fund of money so each member of the class receives a certain amount of money.

In addition, there will be a fee set aside for legal fees and money set aside to cover disbursements in terms of the costs and expenses the plaintiffs had to incur to run the class action.

Buckingham said the costs have been tremendous to both his firm, Bob Buckingham Law, and Brothers and Associates in Corner Brook.

“And that doesn’t include the stress and the strain, the cost on the lead plaintiffs in this, which has been very difficult on them. The personal and emotional costs. They were the lead people on this, and they have found it very difficult,” he said.

Buckingham said Hynes was committed to proceeding with the matter and had been gearing up the last couple of weeks preparing for the trial.

“She’s found it very stressful and very difficult, but was ready to go to court, was ready to face this matter, but at the same time, now that we have reached a resolution, she’s happy with that.

“And I think this is a good settlement for the whole class.”

The next step in the matter will see an application filed with the court to have the settlement and settlement process approved and to get that information out to the 912 class members. Then it will be back to court to get final court approval.

No date has been set for the court to hear the application. Buckingham said the lawyers involved met after court on Monday to set out the basic parameters of what has to be done next, and the application should be filed in a week or so.

Buckingham said the issue of Western Health accepting responsibility for the breach will be part of the settlement proposal that is put forward.

The Western Health privacy breach is not the only one before the courts.

Two others allegedly affecting 35-40 people in Central Health and 120 people in Eastern Heath had been put on hold pending the resolution of the Western Health matter.

A statement of claim has also been filed in a fourth case from two years ago in Central Health. A staff person there looked at the obstetric and gynecological information of various people, and some other records of other people. The class in that case involves 240 people.