The Court of Appeal for Ontario has addressed an important point about the intentionality element in the intrusion upon seclusion tort.
The Court dismissed an appeal by a nurse who claimed her employer’s liability insurer had a duty to defend her from claims that arose out of her unauthorized access to patient information. The issue was whether policy language limiting coverage for “expected” or “intended” injury applied, which required the Court to analyze whether an allegation that one has committed the intrusion tort is an allegation of intentional conduct.
The Court said “yes,” and made clear that recklessness is a form of intentional conduct:
Although the Jones decision does not contain a definition of “reckless,” it places reckless conduct side-by-side with intentional or deliberate conduct. Jones adopted the Restatement’s formulation of the tort as involving an intentional intrusion. As well, the decision limited claims for intrusion upon seclusion only to “deliberate and significant intrusions of personal privacy”: Jones, at para. 72. One cannot tease from the discussion in Jones any support for the proposition advanced by Ms. Demme that Jones’ inclusion of a reckless act within the tort of intrusion upon seclusion could involve unintentional conduct.
The Court also articulated the precise state of mind that meets the intentionality element:
For that tort, the relevant intention is the defendant’s intention to access private patient records. If that is demonstrated, the nature of the tort is such that the intention to access the records amounts to an intention to cause injury.
The appellant had argued that she lacked the intent to cause injury and therefore ought to have been covered.
Demme v. Healthcare Insurance Reciprocal of Canada, 2022 ONCA 503 (CanLII).