Class Action Intrusions: A Development in Privacy Rights or an Indeterminate Liability?

Abstract

Since it’s inception in Jones v Tsige, legal practitioners have struggled with the tort of intrusion upon seclusion. The limited damages awarded in that case, and what the court indicated would be reasonable for privacy breaches, suggested that the tort would have limited utility as a stand-alone cause of action, and may only arise in in conjunction with other claims. However, the tort has recently been used successfully, at least at the summary judgment level, particularly in the class actions context where the aggregate claims make it more feasible to rely on the tort exclusively. In the wake of The Ontario Court of Appeal’s decision in Hopkins v Kay, this paper examines intrusion upon seclusion in the context of privacy breaches in the healthcare sector. This work purports to show that although a statutory regime exists to govern healthcare privacy breaches in Ontario and other provinces in Canada, intrusion upon seclusion is the best method for addressing privacy breaches in this context.

Keywords: intrusion upon seclusion, privacy law, health records, electronic records, professional discipline, class actions

JEL Classification: K00, K13