The tort of “intrusion upon seclusion”, first adopted in Ontario by the Court of Appeal in its much-discussed decision in Jones v. Tsighe, has been given new life, and perhaps additional significance, by a recent decision to certify a class action in Stewart v. Demme, 2020 ONSC 83.

This matter involved a breach of health records at a hospital by a nurse who spent ten years as a drug addict stealing Percocet from the drug supplies in the hospital she worked at. She accomplished this by “dispensing” the drugs to patients through the hospital’s Automated Dispensing Unit (“ADU”), which was located in the day surgery where she worked.

The hospital took the position that any access to health records by the nurse was “fleeting” and that it was therefore not “highly offensive” as required by Jones. The defendant’s testimony and the hospital records showed that each access by the defendant to health records, for the purpose of stealing drugs, lasted less than a minute.

The court, while acknowledging that any access to health records may have been “fleeting” found that “The offensiveness is based on the nature of the privacy interest infringed, and not on the magnitude of the infringement”.

In addition, because the amount of damages per patient was likely to be low, the court found that this was an ideal case for damages to be awarded in the aggregate.

This case is likely to serve as an important counterpoint to the denial of certification in Broutzas v. Rouge Valley.

See: Stewart v. Demme, 2020 ONSC 83 (CanLII)

 

Mikel Pearce

Mikel (pronounced “My-Cle” or “Michael”) is a trapeze artist trapped in the body of an insurance defence and coverage lawyer. His name might suggest that he is Catalan Spanish, but no one in Mikel’s family is Spanish. Or Catalan. Although he does like cats.

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