Not All Privacy Breaches Warrant Certification Of A Class Action

In the recent decision in Stewart v Demme,¹ the Divisional Court granted the defendant's appeal setting aside the order of the certification judge² and ultimately dismissing the plaintiff's motion to certify the proposed class action for intrusion upon seclusion. The case is yet another example of a claim for breach of privacy being rejected by the court because the claimants could not show that the breach was significant enough to warrant a remedy.

CERTIFICATION DECISION OF MORGAN J.

In the underlying certification motion before Justice Morgan, the plaintiff sought to certify a class action against a nurse and the hospital which employed her. The defendant nurse had engaged in a series of thefts of opioids, ultimately obtaining 23,932 pills. She acquired the drugs by misusing her position at the hospital to gain unauthorized access to patients' medical files, and used patient information to dispense the pills. In total, the nurse had improperly accessed the