On January 17, 2022, the Ontario Superior Court of Justice (the Court) in Winder v Marriott International, Inc., 2022 ONSC 390, found no legally viable cause of action for intrusion upon seclusion against Marriott International Inc., Luxury Hotels International of Canada ULC and Starwood Canada ULC (collectively, Marriott) since it was not an intruder for the purposes of the tort of intrusion upon seclusion recognized in Jones v Tsige2012 ONCA 32.

The proceeding relates to a national proposed class action against Marriott stemming from a data breach of its reservations database which compromised the personal information of approximately 500 million customers worldwide. Marriott first disclosed the breach in November 2018, as previously reported by the E-TIPS® Newsletter here. On a motion under Rule 21.01(1)(a) of the Ontario’s Rules of Civil Procedure, the parties agreed to raise a question of law as to whether the plaintiff had pleaded a legally viable cause of action against Marriott for intrusion on seclusion.

The plaintiff argued that Marriott was a “reckless intruder who exposed sensitive stored personal information to the risk of harm”, allowed the hacker into its database and took insufficient remedial steps. The plaintiff submitted that this conduct was reckless and objectively offensive to a reasonable person. Marriott argued that it was a victim of the hacker and was not liable for intrusion upon seclusion.

The Court, relying on prior jurisprudence, held that the plaintiff’s Statement of Claim did not plead a legally viable action against Marriott for the tort of intrusion upon seclusion. The Court found that the tort of intrusion upon seclusion “does not extend to constructive intruders and is limited to real ones”, otherwise “floodgates” would unnecessarily open to ascribe liability that is adequately controlled by other causes of action such as negligence, breach of confidence and breach of contract. The Court further noted that there is no gap in the law of privacy that needs to be filled by extending the nature of intruders.

Summary By: Anna Troshchynsky


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