The tort of intrusion upon seclusion is commonly pled as a cause of action in privacy class actions – increasingly with mixed success. The recent decision of the Ontario Divisional Court (the Court) in Stewart v Demme, overturning certification, is the latest example showing the narrow application of the tort. The case sheds light on the test for intrusion upon seclusion and, in particular the requirement that the alleged intrusion be “highly offensive”.
The defendant, Demme, had been employed as a nurse by the defendant hospital from 2007 to 2016. During that time, she stole nearly 24,000 opioid pills from the hospital’s automated dispensing unit (ADU), before being caught (and having her employment terminated). In order to obtain the drugs, she accessed the individual records of 11,358 patients, some of whom were in her circle of care.
For patients who were not in her circle of care, Demme randomly selected patient names from the ADU display, giving her access to their name, ID number, the hospital unit they had visited, allergy information (if applicable), and any medication they had taken during the last 32 hours. This enabled Demme to discover which patients had taken opioids and have the ADU dispense medication to her for her own use. She only accessed each record for a matter of seconds, which was enough time to enable her to release the drugs. For patients who were in the nurse’s circle of care, she accessed their paper files in a similar manner.
The claim is certified
The motions judge certified the claim for intrusion upon seclusion, with the class comprised of patients whose files Demme had accessed. The motions judge found that the first two elements of the tort had been satisfied (i.e., Demme’s conduct was intentional or reckless and she had invaded, without lawful justification, the class members’ private affairs or concerns). With respect to the third element (i.e., whether the invasion of class members’ privacy was “highly offensive”), the Court accepted that Demme’s access to class members’ files had been “fleeting” and did not lead to any discernable harm or effect on class members. This was not a situation that “cried out for a remedy.” Nonetheless, the Court found that the invasion could be viewed as “highly offensive” given that the case involved private health information. On that basis, the motions judge found that it was not “plain and obvious” that the plaintiff’s claim for intrusion upon seclusion could not succeed.
On appeal, the Court examined the Court of Appeal for Ontario’s decision in Jones v Tsige, which first recognized the tort of intrusion upon seclusion in Canada and the reasons underlying the recognition of the tort; these included the fact that there was no other remedy available for the plaintiff in that case to address the defendant’s actions (i.e., repeated access to the plaintiff’s banking information over a period of 4 years) – i.e., the facts “cried out for a remedy.” The Court held that this phrase informed the standard for what constitutes a “highly offensive” intrusion, and thus the tort should only be available in particularly serious instances.
The Court disagreed with the motions judge that “any intrusion – even a small one – into a realm as protected as private health information may be considered highly offensive.” Here, Demme’s access to patient records had been fleeting, the information accessed was not particularly sensitive, her motive had not been to obtain the information (but to obtain drugs), and there were no discernable effects on the patients. As a result, the Court held that the intrusion had not been highly offensive, even though it involved private health information. On this basis, the Court set aside the order certifying the action.
This decision is important in several respects. First, it illustrates a growing tendency for courts to weed out privacy-related class action claims at the certification stage. We have previously written about this trend. Second, it clarifies that for the purposes of the tort of intrusion upon seclusion, the type of information intruded upon is not determinative of whether the intrusion is highly offensive. The circumstances in which the intrusion took place (including the purpose of the intrusion) will also be relevant. Third, it recognizes that evidence of any impact on putative class members as a result of the intrusion (or lack thereof) may be relevant in determining whether the tort is made out; despite the fact that the tort of intrusion upon seclusion does not require evidence of damages.