In 2012, the Ontario Court of Appeal made proverbial headlines when it held that the tort of intrusion upon seclusion (invasion of personal privacy in common parlance) existed as a cause of action in Ontario. Earlier this month, the Ontario Superior Court took a step in the development of this area of the law by allowing the class action of Evans v. Bank of Nova Scotia to proceed under the new tort.
On June 6, Justice Smith certified the action, which was brought by a group of customers of the Bank of Nova Scotia against the bank and an employee, Richard Wilson. In 2011, Wilson began providing confidential information of bank customers to his girlfriend, who would then pass the information to third parties “for fraudulent and improper purposes.” As a result, many of the customers became the victims of identity theft and fraud.
The reasons of Justice Smith disclose that the Bank resisted the certification with full force. The Bank argued that the customers had failed to meet any of the criteria for the certification of a class action and that, since it had already compensated the customer-plaintiffs for any pecuniary losses resulting from Wilson’s actions, the plaintiffs had suffered no damages. It argued that it was not vicariously liable for Wilson’s actions, to which his Honour responded that without having installed any monitoring system and by “allowing unsupervised access to [customers’] confidential information,” “the Bank [had] created the opportunity for Wilson to abuse his power.” In addition, he found that pecuniary losses were only one form of damages to which the plaintiffs may be entitled, and so the Bank’s compensation wasn’t determinative.
The Bank also attempted to have the certification denied on the grounds that a number of plaintiffs were resident in British Columbia and New Brunswick, where courts have yet to recognize the tort of intrusion upon seclusion. Justice Smith agreed, but was quick to add that none of the cases expressly precluded the existence of the tort. He determined that, “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,”
It is clear from reading the decision that the Court is relying on a liberal interpretation of the Class Proceedings Act, and its goals of promoting access to justice and efficiency in use of judicial resources. However, one must remember that this is only a certification motion; it is not a hearing on the merits of the case. The plaintiffs have a long way to go to proving their claims and, judging by the vim with which the Bank resisted this motion, it should prove to be a well fought battle. Regardless of how the case is disposed of, law aficionados are sure to be waiting to see how the Court identifies and applies the parameters of the new tort.