Ontario Superior Court of Justice Limits the Scope of the Tort of Intrusion Upon Seclusion

On June 9, 2021, the Ontario Superior Court of Justice issued its decision in Owsianik v Equifax Canada Co, 2021 ONSC 4112, where the majority allowed an appeal arising from the plaintiff’s successful class certification motion, finding that entities that collect and store private information cannot be liable for intrusion upon seclusion by failing to prevent the intrusion of another.

In 2017, Equifax reported that it had experienced a data breach affecting the personal information of millions of consumers across North America, as previously reported by the E-TIPS® Newsletter here.  The plaintiffs commenced a class action against Equifax for a number of causes of action.  The certification judge certified the class action, including an action for intrusion upon seclusion, concluding that the relatively new tort should be allowed to continue to develop and should not be closed down at the pleadings stage.

On appeal, Equifax argued that the Court of Appeal in Jones v Tsige, 2012 ONCA 32, did not intend to expand liability under the tort of intrusion upon seclusion to defendants that failed to secure private information from improper access by a third party. Equifax asserted that it did not invade the plaintiffs’ private affairs but, at most, facilitated the invasion.

The majority held that to extend liability to a person who does not intrude, but who fails to prevent the intrusion of another, would be more than an incremental change to the decision in Jones. The majority stated that “no one says that Equifax intruded, and that is the central element of the tort.”  The majority also noted that the plaintiffs still have a remedy and that the tort of negligence adequately protects them.  The majority allowed the appeal.

On dissent, Justice Sachs stated that “[t]he rights at issue are fundamental rights that are facing unprecedented threats”, and that the common law should be allowed to develop in an incremental way to meet those threats.

Summary By: Sharan Johal