CANADA Trends and Developments Contributed by: Elizabeth Bowker, Shadi Katirai, Christian Breukelman and Grace Murdoch, Stieber Berlach LLP
ing focus on claims arising from organisations’ own collection, use and monitoring of personal informa- tion. Organisations now collect unprecedented amounts of personal information through surveillance systems, mobile applications, customer analytics programs, artificial intelligence tools and employee-monitoring technologies. As data collection becomes more inte- grated into ordinary operations, privacy class actions will likely move beyond allegations of unauthorised access and focus instead on whether organisations should have collected, retained, monitored or used the information in the first place. In J . C . et al . v Jugenburg et al .,2026 ONSC 3061, the Court held that plastic surgeon Dr Jugenburg and his corporation committed the tort of intrusion upon seclusion by installing surveillance cameras that recorded patients in private areas of the clinic, includ- ing consult rooms and operating rooms, without their knowledge or consent. The court found that patients had a reasonable expectation of privacy while receiving medical care and emphasised that the wrongful conduct was the recording itself, not any subsequent use or disclo- sure of the footage. Although there was no evidence that the recordings were distributed to third parties or viewed for voyeuristic purposes, the cameras cap- tured intimate conversations, images and medical interactions that served no legitimate medical pur- pose. The court rejected the defendants’ assertion that the cameras were installed primarily for security. Instead, the court found they were used to monitor staff, respond to complaints and protect Dr Jugenburg from potential disputes and litigation. The court also concluded that he knowingly recorded patients and collected private information without consent. Applying the test established in Jones v Tsige and fol - lowing the common issues trial, the court found that: • the defendants had invaded the private affairs of class members without lawful justification; • they acted intentionally or, at a minimum, recklessly by knowingly installing and operating the surveil- lance system; and
• a reasonable person would regard the intrusion as highly offensive, causing distress, humiliation and anguish. The court emphasised that recording patients during some of the most vulnerable moments of their lives, without consent and for the defendants’ own benefit, constituted a serious breach of privacy warranting a remedy. The decision contrasts with the earlier case of Stewart v Demme , 2022 ONSC 1790, which illustrates Ontario courts’ reluctance to convert every privacy incident into a compensable class action. In Stewart , a nurse accessed patient information through a hospital database over a prolonged period for the purpose of stealing thousands of Percocet pills. The proposed class action advanced claims for intrusion upon seclusion and negligence. Although the certification judge had certified the intrusion upon seclusion claim, Ontario’s Divisional Court allowed the appeal and held that not every unauthorised access to private health information supports a claim for intru- sion upon seclusion. The Divisional Court emphasised that the intrusion must be objectively “highly offen- sive” when assessed in light of all relevant circum- stances. While the information the offending nurse accessed constituted personal health information, the access was limited, fleeting and incidental to the nurse’s theft of medication. The nurse did not seek the information, retain it or share it with others. In those circumstances, the privacy breach did not “cry out for a remedy.” Taken together, Jugenburg and Stewart demonstrate that courts are increasingly focused on the nature and seriousness of the intrusion itself. While courts remain cautious about certifying privacy claims arising from technical, incidental breaches, they have shown a willingness to impose significant liability where sensi- tive information is deliberately collected, recorded or accessed without adequate justification or consent. Factors such as the sensitivity of the information, the circumstances in which it was obtained, the indi- vidual’s reasonable expectations of privacy and the
60 I NSURANCE L I T IGATI O N 2026
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