Ontario Court Of Appeal Rules Against Plaintiffs In Trilogy Of Privacy Class Actions

• Published date: 06 December 2022
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Class Actions
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Marc Vani, Shane Morganstein, Hanna Rioseco, Daniel Girlando and Eric S. Charleston

In a highly anticipated trilogy of privacy class action certification appeals, the Ontario Court of Appeal refused to certify three class actions based on the tort of intrusion upon seclusion. In Oswianik v. Equifax Canada Co.,Obodo v. Trans Union of Canada, Inc., and Winder v. Marriott International, Inc., the Ontario Court of Appeal held that defendants who collect and store personal information of individuals in databases (Database Defendants) cannot be held liable under the tort of intrusion upon seclusion when cyber criminals illegally access or steal that information.

In recent years, claimants have attempted to expand the tort's application to cyber security and privacy breaches and sought to have class actions certified, seeking aggregate assessment of the moral or symbolic damages that are available for intrusion upon seclusion. This decision trilogy from the Court of Appeal is likely to slow this trend. However, as noted by the Court of Appeal, Database Defendants could remain liable in negligence where their failure to take adequate steps to protect information causes actual - as opposed to symbolic - damages.

Background

The Court of Appeal first codified the tort of intrusion upon seclusion in Jones v. Tsige, 2012 ONCA 32. This case involved an individual action brought against a bank employee who repeatedly accessed and examined the financial records of her ex-husband's new partner. Finding that the facts presented before him would otherwise not be actionable, Justice Sharpe concluded the situation "cried out for a remedy," adopting the tort of inclusion upon seclusion from the American Restatement (Second) of Torts.

In Jones, the Court set out the three elements of the tort:

1. Intentional or reckless conduct by the defendant;
2. An invasion, 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.

Notably, proof of harm was not listed as an element of the tort - a welcome development for plaintiffs (and class counsel) who must ordinarily prove actual damages under other tort claims like negligence or breach of contract. However, in Jones the Ontario Court of Appeal noted the tort's recognition was not meant to "open the floodgates" of privacy litigation.¹ Justice Sharpe limited its application to deliberate and significant invasions of personal privacy that can be described as highly offensive in the eyes...