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 "novel."
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.
So stay tuned!
Read the judgment here.
Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.
Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.
Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.
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.
