In Evans v Bank of Nova Scotia (“Evans”), the Ontario Supreme Court certified a class action proceeding for allegations concerning a breach of privacy rights through the tort of intrusion upon seclusion. This decision set a precedent for the low bar of certification in class actions concerning breaches of information privacy, which may be of some concern to retailers and consumer products distributors that handle consumer personal information.
Justice Smith heard a motion in Evans to certify class proceedings by plaintiffs claiming that the Bank was vicariously liable for the actions of an employee who surreptitiously disseminated the private and confidential information of customers for fraudulent and improper purposes.
In assessing the validity of the cause of action for the breach of information privacy, the Court relied on the test for the tort of inclusion upon seclusion set out in Jones v Tsige (“Jones”), as follows:
- the defendant’s conduct must be intentional (which could include recklessness);
- the defendant must have invaded the plaintiff’s private affairs or concerns without lawful justification; and,
- a reasonable person would regard the invasion as highly invasive, causing distress, humiliation, or anguish.
As discussed in a previous blog, the Jones test does not require proof of damage, widening the availability of the common law tort of intrusion upon seclusion as a basis of action in certain provinces. In Evans, the Court found that the plaintiffs established that their claim against the Bank for vicarious liability for its employees’ tort of intrusion upon seclusion would not be plainly and obviously unsuccessful. Though the Court noted that the law in this area is unsettled, it chose to affirm the test in Jones, declining to consider decisions by courts in British Columbia and New Brunswick, which have recently chosen not to recognize this common law tort.
The availability of the tort of intrusion upon seclusion as a class action matter should concern retailers and other consumer facing businesses as:
- The elements of proving this tort do not require proving damage; and
- The low threshold for class action certification, given that class action statutes are structured to promote access to justice and to make efficient use of judicial resources through the consolidation of common claims that may otherwise not be litigated.
However, the common law tort of inclusion upon seclusion per Jones is not recognized in all Canadian provinces. Plaintiffs may not always have an option to base a class proceeding on this tort claim. For instance, the Supreme Court of British Columbia held in Demcak v Vo that there is no common law tort of invasion of privacy. Instead, BC, along with four other provinces, has a statutory tort for the invasion of privacy. While the BC statutory provisions outlining this tort are similar to those elements in Jones, it is possible that the existence of a statutory cause of action will preclude courts from seriously considering the common law tort followed by the Court in Evans.
Despite the fact that the tort of inclusion upon seclusion is not available in British Columbia, the Supreme Court of British Columbia has recently certified a class action against Facebook regarding alleged violations of the British Columbia Privacy Act, with a massive estimate class of 1.8 million people. This action arose from Facebook’s “Sponsored Story” advertisement that uses an individual’s Facebook portrait image and name to indicate to friends in the individual Facebook network he or she follows a brand or product on Facebook. It was alleged that Facebook violated section 3(2) of the Privacy Act by using portrait images and names of users in the “Sponsored Stories” without explicit and informed consent. For more information about this case, you can read our blog here.
The debate in Canada is clearly far from over, and it will be interesting to see whether other jurisdictions adopt a common law cause of action and allow certifications of class proceedings (as in Ontario), enact a statutory cause of action and allow certifications under the statutory regime (as in BC), or both.