In Owsianik v. Equifax Canada Co., 2021 ONSC 4112, a majority of the Divisional Court partially overturned a certification of a class action involving a computer hacking incident. The motion judge had certified a number of causes of action against the defendant, including a claim for intrusion upon seclusion.
The Ontario Court of Appeal recognized the tort of inclusion upon seclusion in Jones v. Tsige, 2012 ONCA 32. To succeed in this tort, the defendant’s conduct must be intentional (which includes recklessness); the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish. Proof of harm to a recognized economic interest is not a required element.
The Court of Appeal said that damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum, with an appropriate range up to $20,000.
In Owsianik, there was an unauthorized security breach of the defendant’s computer systems, which allegedly led to the exposure of private information of millions of consumers across North America. The plaintiff alleged that the defendant knew that its IT security was inadequate and vulnerable to hackers and made the choice to not take the necessary steps to guard against the hacking.
The majority of the Divisional Court disagreed with certifying the class action on the tort of intrusion upon seclusion. The majority stated 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 Jones decision, which was not warranted. There was no allegation that the defendant intruded, which is a central element of the tort.
The majority stated that the plaintiffs continue to have a remedy and that the tort of negligence adequately protects them.
Justice Sachs, dissenting, would have dismissed the appeal, stating that the tort of intrusion upon seclusion is a new tort, whose limits have not been fully developed at common law in Canada.
Justice Sachs said that the 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 see how far the tort should be extended to meet those threats.
In conclusion, at present, the tort of inclusion upon seclusion only applies against those who invaded a plaintiff’s private affairs or concerns, not against those who failed to prevent an invasion by someone else.