Evans v. The Bank Of Nova Scotia: Another Case Of Intrusion Upon Seclusion Is Certified As A Class Action

The new tort of "intrusion upon seclusion", which provides a cause of action to those whose privacy has been breached, was given new teeth this month by the certification of a class action against the Bank of Nova Scotia and its employee, Richard Wilson.

Facts

The central allegations are that Mr. Wilson, a Mortgage Administration Officer employed by the Bank, decided to print out and give his customers' confidential information to his girlfriend. His girlfriend then distributed this information to individuals who used it to commit identity theft and fraud. The scam was exposed by the Calgary Police in May 2012 when the police found profiles belonging to the Bank's customers in the course of executing a search warrant against individuals suspected of fraud in Alberta. Mr. Wilson confessed to improperly accessing and printing personal customer profiles for individuals who applied for mortgages from November of 2011 until the end of May 2012, and delivering them to third parties.

The Bank identified 643 customers whose files were accessed, and gave those customers notice that it was possible that there had been unauthorized access to their confidential information held by the Bank and offered free credit monitoring and identity theft protection. As of the date of the hearing, 138 of those customers had notified the Bank that they have been the victims of identity theft or fraud, and the Bank provided them with compensation for their pecuniary losses.

The 643 customers, known as the "Notice Group," sued the Bank and Mr. Wilson for damages in negligence, breach of contract, breach of fiduciary duty, breach of good faith, and under the new tort of intrusion upon seclusion, claiming damages for emotional suffering, hardship, inconvenience, and waiver of tort. The Court certified the Notice Group's class action for intrusion upon seclusion and waiver of tort, in addition to the Bank's alleged breach of contract with those customers and negligent supervision of its employee.

Intrusion upon Seclusion

Jones v. Tsige1 established a tort in Ontario for the intentional or reckless invasion of the privacy of another individual without lawful justification. The harm from such an invasion of privacy must be such that "[a] reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish." The Court of Appeal in Jones indicated that "a modest conventional sum" of damages would be appropriate, and that the appropriate...