Canada: Evans v. The Bank Of Nova Scotia: Another Case Of Intrusion Upon Seclusion Is Certified As A Class Action

The new tort of "intrusion upon seclusion", which provides a cause of action to those whose privacy has been breached, was given new teeth this month by the certification of a class action against the Bank of Nova Scotia and its employee, Richard Wilson.


The central allegations are that Mr. Wilson, a Mortgage Administration Officer employed by the Bank, decided to print out and give his customers' confidential information to his girlfriend. His girlfriend then distributed this information to individuals who used it to commit identity theft and fraud. The scam was exposed by the Calgary Police in May 2012 when the police found profiles belonging to the Bank's customers in the course of executing a search warrant against individuals suspected of fraud in Alberta. Mr. Wilson confessed to improperly accessing and printing personal customer profiles for individuals who applied for mortgages from November of 2011 until the end of May 2012, and delivering them to third parties.

The Bank identified 643 customers whose files were accessed, and gave those customers notice that it was possible that there had been unauthorized access to their confidential information held by the Bank and offered free credit monitoring and identity theft protection. As of the date of the hearing, 138 of those customers had notified the Bank that they have been the victims of identity theft or fraud, and the Bank provided them with compensation for their pecuniary losses.

The 643 customers, known as the "Notice Group," sued the Bank and Mr. Wilson for damages in negligence, breach of contract, breach of fiduciary duty, breach of good faith, and under the new tort of intrusion upon seclusion, claiming damages for emotional suffering, hardship, inconvenience, and waiver of tort. The Court certified the Notice Group's class action for intrusion upon seclusion and waiver of tort, in addition to the Bank's alleged breach of contract with those customers and negligent supervision of its employee.

Intrusion upon Seclusion

Jones v. Tsige1 established a tort in Ontario for the intentional or reckless invasion of the privacy of another individual without lawful justification. The harm from such an invasion of privacy must be such that "[a] reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish." The Court of Appeal in Jones indicated that "a modest conventional sum" of damages would be appropriate, and that the appropriate range of damages would be up to $20,000. In Jones, the plaintiff Jones and defendant Tsige were two employees of the Bank of Montreal, working at different branches, but Tsige became romantically involved with Jones's ex-husband and began probing Jones's financial information by way of her access as an employee of the bank.  Jones was granted summary judgment against Tsige for $10,000.

The question in Evans was whether the Bank was vicariously liable for Mr. Wilson's actions, which were arguably worse than Tsige's because he disclosed the information to a third party. The Court went back to the first principles of vicarious liability from Bazley v. Curry.2 The key factor that decided this issue was that the Bank created the opportunity for Mr. Wilson to abuse his power by having unsupervised access to customers' private information. It did not matter that the Bank was not itself involved in the improper conduct. It also did not matter that the damages for the tort of intrusion upon seclusion are symbolic or moral damages; the Court found that it was not plain and obvious that the Bank was not vicariously liable:

The tort of intrusion upon seclusion has only recently been recognized by the Ontario Court of Appeal and is settled in Ontario. However, until the matter is ultimately decided at the Supreme Court of Canada, I find that the law in Canada is not settled on this issue.

The cause of action has yet to be considered by the Supreme Court of Canada, and not all provinces have established the tort as a cause of action. British Columbia courts have refused to acknowledge a tort of breach of privacy that is independent of privacy legislation.3

However, this is not the first time that the tort of intrusion upon seclusion has been certified as a common issue in a class action. In March, 2014 the Federal Court certified a class action in Condon v. Canada4 partly on the basis of intrusion upon seclusion. The case involved the loss of confidential student information on an external hard drive collected for the Canada Student Loans Program by the Government of Canada. As in Evans, the Court determined that it was not plain and obvious that a claim on the basis of the new tort would fail.


The Bank in Evans challenged the plaintiffs' claim for damages for emotional distress because the plaintiffs had not demonstrated that the harm to them rose to the level of a recognizable psychiatric illness, attempting to use the precedent of Healey v. Lakeridge Health Corp.5 However, the Court found that "it is not plain and obvious that the plaintiffs who have suffered real pecuniary damages would not also have the right to claim additional damages for the emotional suffering, hardship and inconvenience they have suffered."

Further, the Bank challenged the plaintiffs' claim for damages on the basis of waiver of tort because the alleged wrongdoing had no connection to the Bank's profits. The Court agreed with the Bank that there must be a "wrongful gain" by the particular defendant for waiver of tort to succeed, but disagreed that the Bank's profits were unconnected to the Bank's allegedly negligent supervision of Mr. Wilson, reasoning that inadequate supervision may save the Bank money.6


While it is not the first time that intrusion upon seclusion has been the basis of a certified class action, Evans v. Bank of Nova Scotia is unlikely to be the last if employees of businesses who collect confidential information from their clients and customers lose or misuse that information. As such, until the parameters of the tort are further developed by the courts it is advisable for businesses to supervise employee access to confidential information to ensure that it is not misused in a way that might subject them to potential liability.


1 2012 ONCA 32 at para. 71.

2 [1999] 2 S.C.R. 534 at paras. 37, 41.

3 Mohl v. University of British Columbia, 2009 BCCA 249 at para. 13.

4 2014 FC 250.

5 2011 ONCA 55.

6 Evans at para. 61.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions