In previous commentaries we have noted that the tort of
intrusion on seclusion could form the basis of future class actions
in Canada. It did not take long for our prediction to come true nor
for the Federal Court to certify a class action based not only on
the tort of intrusion on seclusion but also on the additional tort
of "publicity given to private life," which it dubbed
The facts are straightforward: plaintiffs are part of
Canada's Marijuana Medical Access Program run by Health Canada
to which they were obliged to give their postal address as one of
the conditions of admission to the program. Through an
administrative error, Health Canada posted letters to plaintiffs in
oversized envelops making visible not only plaintiffs' names
but also the name of the program.
The Federal Court certified several causes of action that
included two torts: intrusion on seclusion as described in
Jones v Tsige, 2012 ONCA 32 (Can LII) as well as an
additional tort that appears to be an extension of the first and is
described in the Restatement (Second) of Torts as:
One who gives publicity to a matter concerning the private life
of another is subject to liability to the other for invasion of his
privacy, if the matter publicized is of a kind that:
would be highly offensive to a
reasonable person and
is not of legitimate concern to the
public. [cited at par 42 of the judgment]
While the court stopped short of unreservedly adopting the
Restatement description of this tort as law in Canada, it noted at
par. 42 of its judgment that it is a "concept that should not
be readily dismissed at an early stage of litigation."
Clearly our courts are reacting favourably to certification of
privacy class actions based on new and evolving torts. It remains
to be seen how courts on the merits will trace and define the
parameters of these torts.
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