A recent Ontario court decision confirms that a widespread privacy breach will not necessarily result in a viable class action. In Broutzas v. Rouge Valley Health System, 2018 ONSC 6315, Justice Perell refused to certify a proposed privacy class action because, based on the facts, it was plain and obvious that the unauthorized access and disclosure of individuals’ contact information did not support a tenable cause of action for intrusion on seclusion. In Justice Perell’s words, “there [was] intrusion, but not an intrusion on seclusion”. The decision reaffirms the tight and narrow parameters of the tort of intrusion on seclusion and the limitations on its use to justify a privacy class action.
Facts
Three hospital employees allegedly independently accessed the names and contact information for patients who had recently given birth and used the information to facilitate sales calls for Registered Education Savings Plans (RESPs). Two of the hospital employees allegedly sold the patients’ contact information to RESP sales representatives to use as sales leads, and the third employee was a part-time RESP sales representative. Importantly, none of the employees improperly accessed or disclosed the patients’ confidential medical information.
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