Manitoba Court Interprets The Common Law Tort Of Intrusion Upon Seclusion

The Manitoba Court of Appeal (the "Court") has held that the tort of intrusion upon seclusion, as set out in Jones v Tsige, may allow family members, who claim to have suffered as a result of a breach of a privacy interest of another member, to advance a claim in their own right.

Background of Intrusion Upon Seclusion

In January 2012, the Ontario Court of Appeal released Jones v Tsige, in which it held that there is a tort of invasion of personal privacy in Ontario. For more on Jones v Tsige, see this article.

More recently, in Demcak v Vo, the British Columbia Supreme Court confirmed that, due to an existing statutory cause of action, there is no common law tort of invasion of privacy in British Columbia. For more on Demcak v Vo, see this article.

The Facts in Grant v. Winnipeg Regional Health

In Grant, the plaintiff, the sister of a man who died in an emergency waiting room after a prolonged stay there without receiving medical attention, commenced an action against the Winnipeg Regional Health Authority. In the amended claim against the defendants, the plaintiff, on her own behalf, sought damages for the alleged misuse of her brother's personal medical information by hospital officials during statements to the media after his death. The motion judge determined that a third party cannot sue in negligence for the deliberate release of personal information of another person.

The Decision in Grant v. Winnipeg Regional Health

In short, the decision in Grant v. Winnipeg Regional Health Authority et al., 2015 MBCA 44 ("Grant"), is a successful appeal of the decision of the motion judge, which upheld the decision of the Master striking parts of an amended statement of claim as disclosing no reasonable cause of action.

In reasons dated May 4, 2015, Monnin JA provided an overview of the Ontario Court of Appeals adoption of the tort of intrusion upon seclusion in Jones v Tsige. Monnin JA went on to discuss the subsequent expansion of the tort in Hopkins v Kay, where the courts held that the cause of action for intrusion upon seclusion could be applied to a situation involving the unauthorized disclosure of patient hospital records. For more on Hopkins v Kay, see this article.

Based on the review of Ontario jurisprudence, Monnin JA held that it was clear that, had the deceased survived, he may have advanced on his own behalf a claim for intrusion upon seclusion. Further, the Court found that whether family members, who claim to have suffered as a...