Common Ground? Class Action Updates
Appellate Court Denies Certification of Class Actions Claiming Intrusion Upon Seclusion
Date: February 1, 2023
In Broutzas v. Rouge Valley Health System, the Ontario Divisional Court dismissed an appeal from a motion decision that had denied certification in two class proceedings, which were focused on the tort of intrusion upon seclusion.
The appellants gave birth at certain hospitals between 2009 and 2014 and their hospital records were improperly accessed by three rogue employees. One of the rogue employees was in the business of selling RESPs (Registered Education Savings Plans) and used the contact information to elicit sales. The other two rogue employees sold the contact information of patients to RESP salespeople, who in turn used the information in their sales efforts. Once the hospitals became aware of the privacy breach, they notified the Privacy Commissioner and affected patients. The Privacy Commissioner investigated and corrective actions were implemented.
In response, the appellants brought two class actions. The motion judge declined to certify the proposed class actions, concluding that it was plain and obvious that the appellants did not have a reasonable cause of action for intrusion upon seclusion.
On appeal to the Divisional Court, the appellants argued that the motion judge erred in his conclusion on all three elements of the tort of intrusion upon seclusion, which had been set out in the leading appeal court decision on the topic (Jones v. Tsige).
The Court’s Analysis and Dismissal of the Appeal
On appeal, the Divisional Court addressed the three elements of the tort of intrusion upon seclusion as set out in Jones v. Tsige: (1) that the defendant engaged in intentional or reckless conduct; (2) that the conduct involved an intrusion, without lawful justification, into the plaintiff’s private affairs or concerns; and, (3) that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.
The Court first focused on whether there was an intrusion into the appellants’ private affairs or concerns (the second element of the tort of intrusion upon seclusion). The Court found the motion judge properly concluded there was an intrusion, but not an intrusion upon seclusion. The information accessed by the rogue employees and used by the RESP salespeople varied but it was primarily personal contact information (such as the type regularly provided for proving identity) rather than private information. As such, the information accessed did not amount to a significant intrusion into the private affairs or concerns of the appellants sufficient to establish the second element of the tort.
The Court determined this conclusion was dispositive of the appeal.
However, it commented on the other two elements of the Jones v. Tsige test:
- With regard to the first element of the intrusion upon seclusion test, the Court noted the motion judge did not err in concluding no cause of action existed between the appellants and the RESP salespeople. The “intruders” into the personal affairs of the appellants were the rogue employees, not the salespeople. As such, it was also unnecessary to decide whether vicarious liability applied to the RESP defendants through their independent contractor relationship with the RESP salespeople.
- With regard to the third element of the intrusion upon seclusion test, the Court held that the motion judge was entitled to deference in concluding that a reasonable person would not regard the intrusion which occurred in this case as highly offensive and a cause of distress, humiliation or anguish.
This decision reaffirms that the specific elements of the tort of intrusion upon seclusion must be met to justify the certification of a privacy class action of this nature. A privacy breach itself, such as access to personal information, will not establish a viable cause of action. The decision also reinforces the importance of a thoughtful and strategic approach to responding to certification motions.
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