Proof of actual loss not element of intrusion upon seclusion

Ontario civil | Civil Practice and Procedure | Class and representative proceedings | Representative or class proceedings under class proceedings legislation

After plaintiff nurse, D, received visits from hospital co-workers who should not have known of her admission to hospital, hospital learned that 14 members of staff, including M, improperly accessed D’s health records(records), and that M improperly accessed records of 5,803 other patients. D brought action against hospital in negligence, breach of fiduciary duty, breach of contract, and intrusion upon seclusion. D and K and brought motion to certify action as class proceeding. Issue arose as to which common issues plaintiffs proposed could be certified. Issues of whether compensatory damages could be assessed in aggregate and whether punitive damages should be awarded could be certified, subject to further submissions. Remaining common issues should be reframed to reflect pleadings, for clarity, and to accord with Class Proceedings Act (CPA). Based on recent appellate decision, issue of whether damages could be assessed in aggregate should be certified. Common issues judge could probably assess at least part of defendants’ liability to class members on aggregate basis with respect to claims in negligence, breach of fiduciary duty, and breach of contract, although individual assessments may also be necessary. It was possible to assess in aggregate at least part of damages with respect intrusion on seclusion claim. Section 24(1)(c) of CPA allowed aggregate assessment where no proof of loss by individual class members was required and proof of actual loss was not element of intrusion upon seclusion. Evidence in support of punitive damages claim was weak, but certification motion was not assessment of merits and claim for damages was based on systemic shortcomings, so claim was certified. Knowledge and conduct of those in charge of maintaining privacy of patients’ records required assessment by trial judge to determine whether punitive damages were justified. Issues not pleaded as separate causes of action should not be certified as proposed. Issues which plaintiffs proposed to frame alleging breaches by both defendants without alleging both defendants had corresponding obligations were to be reframed. Issues regarding separate duties and types of damages were to be reframed separately. Breach of privacy was not certified as it was not pleaded as separate cause of action. Entitlement to pre- and post-judgment interest did not need to be certified.

Daniells v. McLellan (2017), 2017 CarswellOnt 14307, 2017 ONSC 3466, Ellies J. (Ont. S.C.J.).

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