The Litigator
The Litigator
AGM :: Affleck Greene McMurtry LLP
Affleck Greene McMurtry LLP
365 Bay Street, Suite 200  ·  Toronto, Canada
416 360 2800  ·  ·

How Serious Must a Breach of Privacy be to Certify a Class Action?

In 2012, the Ontario Court of Appeal changed the face of privacy law in Ontario by creating a tort called “intrusion upon seclusion”. The tort, set out in the decision of Jones v. Tsige, 2012 ONCA 32 (“Jones”), was developed to address a serious breach of privacy by the Defendant, Tsige. Tsige worked at a bank and used her position at the bank to access Jones’ banking records because Jones was in a relationship with Tsige’s ex-husband. In order to remedy these serious and repeated breaches of Jones’ privacy, the Court awarded Jones $10,000 while noting that these intrusion upon seclusion judgments, at the most extreme end, would not exceed $20,000.

The Court of Appeal set out the three part test as follows:

  1. The defendant’s conduct must be intentional or reckless;
  2. The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and
  3. A reasonable person would regard invasion as highly offensive, causing humiliation, or anguish.

Since Jones in 2012, the Courts have been working to define the boundaries of what is and is not an “intrusion upon seclusion” and in particular, what is and is not highly offensive.

Most recently, the court refined these boundaries in Stewart v. Demme, 2020 ONSC 83 in the context of a class action certification.

Ms. Demme was a nurse at the Defendant, William Osler Health System (the “Hospital”). Over a number of years, she used patient files to steal opioids by dispensing the medications, allegedly for the patients, and then keeping them for herself. Overall, she reviewed approximately 11,358 patient files, including files for patients that were not in her care. Once it was discovered, the Hospital wrote to all of the affected patients to advise that their files had been reviewed by a nurse who may not have been part of their care team.

The Plaintiff started this action alleging, among other things, “intrusion upon seclusion” and sought to certify it as a class action.

In order to certify a class action, the plaintiff must prove, among other things, that the pleadings disclose a cause of action. It is on this ground that the defendant was opposing certification. In particular, the defendants argued that this nurse reviewing the patients files as part of her scheme to obtain opioids did not rise to the level of highly offensive, causing humiliation, or causing anguish, as required by the test.  The defendants contrasted this case with Jones. In Jones, obtaining the information was the objective whereas in this case it was a means to an end; finding out who was authorized to receive the opioids so that the nurse could dispense them to herself.

The Plaintiff’s position was that it was highly offensive that a drug addict was using these patients’ personal information to obtain and potentially sell drugs.

On this motion, the court sets a low bar. The facts in the pleadings are deemed to be true and all the Plaintiff needs to show is that, if the facts were true, they disclose a cause of action.

On reviewing the previous court decisions, Justice Morgan determined that, while the damages for this fleeting and largely harmless invasion of privacy were likely to be very low, a small damage award does not prove the invasion was not “highly offensive”. He wrote:

[72] The present case poses an example at one far end of the spectrum spanning the kinds of intrusions into privacy that the Court of Appeal discussed in Jones. While any intrusion – even a very small one – into a realm as protected as private health information may be considered highly offensive and therefore actionable, the facts do not exactly “cry out for a remedy”

[79] In any case, the Jones reasoning supports the proposition that an infringement of privacy can be “highly offensive” without being otherwise harmful in the sense of leading to substantial damages. The offensiveness is based on the nature of the privacy interest infringed, and not on the magnitude of the infringement. [emphasis added]

Given this, Justice Morgan believed that the pleading of intrusion upon seclusion made out a cause of action. It would be up to the trial judge to determine whether the plaintiff can actually prove there was in fact an intrusion upon seclusion.

However, Justice Morgan did dismiss one of the plaintiff’s claims: negligence. The test for negligence is made out when the plaintiff proves that the defendant breached a duty of care owed to them and that the breach caused them foreseeable damages. Causation of damages is an essential part of the test for the tort of negligence. Since the plaintiff here admitted that she had suffered no quantifiable damages, she could not make out the tort of negligence.

Justice Morgan explained the difference:

 [86] As indicated in the section above, the invasion of privacy is itself a form of harm. But it is not the type of harm that suffices for a negligence claim. Unlike intrusion against seclusion, which is one of the few areas of tort law allowing for “symbolic” or “moral damages”, Jones, para 75, negligence liability requires that actual harm be manifest and caused by the wrong.

He went on to quote the Supreme Court of Canada’s seminal case in Mustapha v Culligan of Canada Ltd., [2008] 2 SCR 114, which set out that upset, disgust, anxiety, agitation, and other mental states that do not rise to the level of an “injury” are not compensable damages.  He believed that the plaintiff in this case experienced a “transient upset” that was not compensable through a claim for negligence.

While these facts were sufficient to surpass the low bar of proving there was cause of action for intrusion upon seclusion, it would be up to the trial judge to say whether these facts actually rise to the level of “highly offensive”, especially in light of the admission that there was no actual harm.

There is no doubt that medical records are some of the most sensitive private information about a person, but the trial judge will no doubt consider that the information was not disclosed beyond the nurse and that, at least in some cases, the nurse was assigned to the patients whose records she reviewed.

Karen Bernofsky
Affleck Greene McMurtry LLP

Karen Bernofsky

Karen Bernofsky is a strong advocate with a focus on commercial litigation and delivering cost-effective solutions. She advises and represents clients in a broad range of complex insurance matters, construction matters and commercial disputes, including breach of contract and invoice disputes. Karen is also a skilled negotiator with a proven track record in effective mediation advocacy. She has appeared before all levels of courts and administrative tribunals in Ontario as well as before the Federal Court of Canada.

Contributor's Archive

Contributor's Profile