the invasion is intentional or reckless; and,
a reasonable person would fi nd the breach
both "highly off ensive," and suffi cient to
cause distress, humiliation or anguish.
In creating the new tort, the OCA said
the plaintiff need not prove any fi nancial
loss and that — in the absence of aggravat-
ing factors — damages should be limited
to a maximum of $20,000, an amount the
court deemed "symbolic." e court added
that the new tort should not be interpreted
to impinge upon freedom of the
press or freedom of expression.
In Evans v. e Bank, it has so
far been found that 643 customer
fi les were accessed by an employee,
whose girlfriend gave information
to third parties. As of June 2014,
138 of those customers had advised the bank they'd
been victims of identity the or fraud aff ecting their
credit ratings. e Ontario Superior Court certifi ed
the class action against the bank for vicarious liability
on the basis that the bank had allowed the employee
unsupervised access to customer fi les, without any
monitoring system, and that there was arguably a signifi cant
connection between the bank's level of oversight and the
conduct of the employee.
In Hopkins v. Kay, the Ontario Superior Court declined in
March 2014 to quash a class action a er 280 patient records
of Peterborough Regional Health Centre were improperly
accessed by hospital employees and distributed to third par-
ties. e court did not certify the claim but found that it was
not so plain and obvious that the claim against the hospital
should be rejected.
Arrayed against this new tort, the British Columbia courts
have consistently ruled, in a series of cases between 2009 and
2013, against a common law tort for breach of privacy (see
Demcak v. Vo) and Alberta's Court of Queen's Bench has
agreed (see Martin v. General Teamsters, 2011). ose courts
have cited the primacy of privacy statutes and privacy com-
missions as part of their reasoning. But in his review of case
law in Jones, Justice Sharpe wrote, "existing provincial legis-
lation indicates that when the legislatures have acted, they
have simply proclaimed a sweeping right to privacy and le
the courts to defi ne the contours of that right."
"It's very likely," Smith predicts, "that, eventually, we'll see
this tort make it to the Supreme Court of Canada." Provin-
cial diff erences aside, he says, other forces pushing the issue
toward the Supreme Court are the increasing frequency of
the or loss of control of personal data and the likelihood
that a large class action will make it worth someone's time
Carr-Harris, J. Bruce
Borden Ladner
Gervais LLP
(613) 787-3505
bcarr-harris@blg.com
Mr. Carr-Harris's civil
litigation practice
includes commercial
litigation, defamation,
judicial review,
professional liability and
discipline, employment
matters and insurance
law, public inquiries
and domestic and
international arbitration.
Cavanagh, J.
Stephen
Cavanagh LLP
(613) 780-2000
scavanagh@cavanagh.ca
Mr. Cavanagh practises in
the fi elds of professional
liability, insurance and
commercial litigation. He
is frequently consulted
by both insurers and
insureds on insurance
coverage issues.
Chaiton, Harvey G.
Chaitons LLP
(416) 218-1129
harvey@chaitons.com
Mr. Chaiton's insolvency
practice emphasizes
domestic and cross-
border receiverships and
restructurings, including
insolvency litigation. His
clients include fi nancial
institutions, creditors,
debtors, monitors,
receivers and trustees.
Carron, QC, AdE,
Christine A.
Norton Rose Fulbright
Canada LLP
(514) 847-4404
christine.carron@
nortonrosefulbright.com
Ms. Carron's litigation
practice embraces major
class actions, product
liability, consumer
protection, banking,
privacy, e-commerce and
shareholder disputes.
She is a Fellow of the
American College of Trial
Lawyers and Advocatus
Emeritus.
Chadwick, Robert J.
Goodmans LLP
(416) 597-4285
rchadwick@goodmans.ca
Mr. Chadwick focuses
on corporate, banking,
private equity, insolvency
and reorganizations,
and M&A law on
national, cross-border
and international
transactions. He counsels
a diverse group of clients,
including boards, in
various industries.
Charbonneau,
Robert E.
Borden Ladner
Gervais LLP
(514) 954-2518
rcharbonneau@blg.com
Mr. Charbonneau focuses
on class actions, cross-
border commercial
cases and insurance
law, including insurance
broker, product and
aviation liability matters.
Retailers, manufacturers,
insurers and chartered
fi nancial institutions
are among his clients.
LEXPERT®Ranked Lawyers
"THERE'S AN EVOLVING TENDENCY, AT
LEAST IN ONTARIO, TO RECOGNIZE MORAL
DAMAGES FOR BREACH OF PRIVACY…
IT REMAINS TO BE SEEN HOW
FAR YOU CAN TAKE THAT."
– Christine Carron, Norton Rose Fulbright Canada LLP
Privacy Litigation | 9
