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Ha-Redeye: Class Action Intrusions
CLASS ACTION INTRUSIONS: A DEVELOPMENT IN
PRIVACY RIGHTS OR AN INDETERMINATE LIABILITY?
OMAR HA- REDEYE*
INTRODUCTION
In 2012 the Ontario Court of Appeal created the tort of intrusion upon
seclusion in Jones v Tsige.1 In that case, the defendant bank employee accessed the
plaintiffs private financial information 174 times. 2 Adopting the American
definition, the court defined the tort of intrusion upon seclusion as follows:
One who intentionally intrudes, physically or otherwise, upon the seclusion
of another or his private affairs or concerns, is subject to liability to the other
for invasion of his privacy, if the invasion would be highly offensive to a
3
reasonable person.
In other words, the tort is aimed at defendants who intentionally violate the privacy
of a plaintiff in a highly offensive way. The court reviewed the existing legislative
regime and concluded that the remedies available to the plaintiff were insufficient: a
common law privacy remedy was needed.
The Ontario Court of Appeal indicated that damages for breaches of
intrusion upon seclusion would be modest, raising concern about the tort's practical
significance in litigation.4 However, the use of this tort in class actions has largely
put this concern to rest.6 Since class actions allow for the aggregation of cases and
the accumulation of sizable awards, it may increase the financial feasibility of
intrusion upon seclusion litigation.
Condon v Canada7 was the first intrusion upon seclusion claim to be
certified as a class action in Canada. The representative plaintiff was successful in
* Omar Ha-Redeye, AAS, BHA (Hons), PGCert, JD, LLM, CNMT, RT(N)(ARRT) Principal, Fleet
Street Law. Adjunct Faculty at Ryerson University, Seneca College and Centennial College. Special
thanks to Kaleigh Hawkins-Schulz of Western Law (2018), and Desron Harry, Rohini Talwar, and
Matthew Gyimadu of the Centennial College Paralegal Program (2015) for their assistance with this
paper.
1 Jones v Tsige, 2012 ONCA 32 [Jones]; Omar Ha-Redeye, New Tort of Intrusion Upon Seclusion
and Electronic Health Records (Paper delivered at Lorman Educational Services Live Seminar, 4
December 2014) [unpublished, archived at <http://ssrn.com/abstract=2533987>].
2 Ibid at para 2.
3 Ibid at para 19.
4 Glenn Kauth, Legal aid employee to pay $7,500 for intrusion upon seclusion, Canadian Lawyer
Magazine (10 November 2014), online: <http://www.canadianlawyermag.com/legalfeeds/2373/legal-
aid-employee-to-pay-7-500-for-intrusion-upon-seclusion.html>.
5 This paper uses the terms class actions and class proceedings interchangeably.
6 Arshy Mann, Focus: Privacy class actions on the rise, Law Times (1 September 2014), online:
<http://lawtimesnews.com/201409014155/focus-on/privacy-class-actions-on-the-rise>.
7 2014 FC 250.
Published by Scholarship@Western, 2015](ViewImageLocal?handle=hein.journals/wesjalals6&div=1&collection=&method=preview&ext=.png&size=3)
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