How Much is Enough: Meeting the threshold for the tort of intrusion upon seclusion

  • December 16, 2022
  • Sarah Virani

On March 24, 2022, the Ontario Divisional Court released its decision in Stewart v Demme (2022 ONSC 1790), a class action case against William Osler Health System and one of its ex-nurses (Demme). The case deals with the tort of intrusion upon seclusion, which is a claim that can be advanced by individuals affected by a significant privacy breach.

Demme was a nurse at William Osler Health System. She suffered from an opioid addiction, which she fueled by stealing Percocet pills from one of the automated dispensing units at the hospital. In order to access the medication, she would randomly choose a patient’s name from the screen on the automated dispensing unit. The screen would then display the patient’s ID number, which unit of the hospital they had visited, any allergy information as well as any medications that had been administered to them in the previous 32 hours. Hospital records show that on each occasion, Demme accessed the patient information for a matter of seconds. Her access of the info was the “key” to unlocking the dispensing unit.

When the hospital learned what was going on, Demme was criminally convicted of theft and lost her license to practice as a nurse. The hospital also notified all affected patients, who in response, initiated a class action lawsuit seeking damages for negligence and the tort of inclusion upon seclusion.

The judge responsible for certifying the class action did not feel that the elements of a claim of negligence were made out. However, the class was certified for the tort of intrusion upon seclusion.