Class Actions And The Tort Of Intrusion Upon Seclusion

The tort of intrusion upon seclusion is well-suited to class actions as large scale collection and electronic storage of information lends itself to intrusion on the masses. Importantly, the tort is actionable without proof of loss. In Hopkins v Kay,¹ the plaintiffs alleged that employees of the Peterborough Regional Health Centre accessed their personal health information and distributed it to third parties without their consent. The tort of inclusion upon seclusion was the only cause of action pleaded. The hospital argued that the Personal Health Information Protection Act (PHIPA)  ² was a comprehensive statutory scheme which occupied the field and precluded the common law cause of action. Justice Edwards rejected the hospital's argument, finding that the Court of Appeal's review of Ontario's privacy legislation in Jones v Tsige³ should be interpreted as permitting the plaintiffs' claim despite the complaint and enforcement regime available under the PHIPA. The