Court File and Parties

COURT FILE NO.: CV-17-574574-00CP DATE: 20200228 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PENNY STEWART, Plaintiff – AND – CATHARINA DEMME and WILLIAM OSLER HEALTH SYSTEM, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Christopher DuVernet and Carlin McCoogan, for the Plaintiff Patrick Hawkins and Daniel Girlando, for the Defendant, William Osler Health System Michael Burgar and Maya Bozorgzad, for the Defendant, Catharina Demme

HEARD: Cost submissions in writing

Costs Endorsement

[1] On January 6, 2020, I issued my judgment in this set of related motions. In that judgment I certified a class action for intrusion upon seclusion subject to Plaintiff’s counsel finding a new representative Plaintiff within 60 days. I also dismissed the Plaintiff’s motion to appoint Chad Letourneau as a new representative Plaintiff in place of Penny Stewart, granted summary judgment in favour of the Defendants with respect to the Plaintiff’s claim in negligence, and dismissed the Defendants’ summary judgment motion with respect to the claim for intrusion upon seclusion.

[2] The result was therefore mixed. That said, the majority, but not all, of the hearing and the written submissions focused on certification and the cause of action in intrusion against seclusion. The submissions and my analysis of that issue brought out two points relevant to costs: a) the claim for inclusion against seclusion, although not brand new, was a somewhat novel one, especially in the context of the unique type of breach of each class member’s rights; and b) any eventual judgment in favour of the class may be quite modest.

[3] At para 55 of my judgment of January 6, 2020, I stated that:

The tort of intrusion upon seclusion is of relatively recent vintage in Ontario. It traces from the Court of Appeal’s judgement in Jones, supra, and can effectively be summarized in a single sentence from para 70 of that judgment: ‘One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.’

[4] The context of a nurse’s access to medication and a Hospital’s way of dispensing it made this a case of close-to-first-instance. It does not appear that anything similar has come along to test in this way how small an infraction can be before it is no longer characterizable as “highly offensive to a reasonable person,” as required for liability in intrusion against seclusion.

[5] At paras 77-78 of my judgment, I stated that:

While this motion is not the forum to actually quantify damages, it stands to reason that the appropriate amount per class member might be a small one – perhaps significantly less than the $10,000 awarded in Jones where there were multiple, protracted invasions specifically targeting the plaintiff’s own information in order to use it against her.

Ontario cases have in the past awarded nominal amounts for notional invasions of privacy causing no observable harm…

[6] In my judgment, I suggested that the cause of action in intrusion against seclusion may play out here to qualify as “highly offensive” but at the same time be found to cause little or no harm. Needless to say, I made no determination of the damages issue in the certification ruling, but I did suggest that the nature of the claim is such that the monetary size of the case may pose a challenge to the class.

[7] There is some authority for not awarding costs to the successful party where the legal issues are novel, including in privacy claims: see Jones v Tsige, 2012 ONCA 32, at paras 91-93; Broutzas v Rouge Valley Health System, 2019 ONSC 559, para 27. While I appreciate that the Plaintiff was successful in sustaining and certifying its cause of action in intrusion against seclusion, the value of this success remains to be seen.

[8] In my view, the costs ordinarily going to the Plaintiff for her success in two of the motions here at least equal the costs that would otherwise be payable to the Defendants in their success in the other motions. But I do not know by how much, if anything, the Plaintiff’s costs claim exceeds those of the Defendants.

[9] Fixing costs is discretionary under section 131 of the Courts of Justice Act. Given the mixed results of this set of motions and the fact that the value of the Plaintiff’s success in the certification motion is still very much up in the air, this is a case where it is appropriate to take a wait-and-see approach. Until the common issues are tried, it is not possible to know how much the Plaintiff’s certification and intrusion against seclusion victory is really warrant.

[10] Accordingly, I order that costs of these motions shall be in the cause of the common issues trial.

Morgan J. Date: February 28, 2020