Canada: Employer’s Potential Liability In Class Action For Employee’s Breach of Privacy

Ryley Mennie of McCarthy Tétrault LLP writes:

A recent decision of the Ontario Superior Court of Justice highlights the increasing focus on (and potential liability arising from) customers’ and clients’ privacy rights and the importance for employers to properly monitor the activities of their employees. Additionally, while the decision comes from Ontario, which, unlike British Columbia, has endorsed the tort of “intrusion upon seclusion”, it also raises questions about whether British Columbia courts will eventually recognize the tort.

Evans v The Bank of Nova Scotia was a decision regarding the certification of a class action that involved a bank employee who admitted to accessing and stealing personal information from 643 of the bank’s clients for fraudulent purposes. Two of those clients – Michael and Crystal Evans – were named as representative plaintiffs in the class action alleging vicarious liability against the bank for a number of causes of action, including the tort of intrusion upon seclusion, endorsed by the Ontario Court of Appeal in 2012.

The court certified the class action, finding that the bank had created the opportunity for its employee to abuse his power by allowing him unsupervised access to clients’ personal information without installing any monitoring system and that there was a significant connection between the risk created and the employee’s wrongful conduct.

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