Canada: Canadian Privacy Class Actions At The Crossroads


Canadian privacy class actions are on the rise, emerging from a wealth of new technologies, novel business practices, and an ever-growing body of jurisprudence south of the border. As privacy class actions find their place in Canadian law, the question is no longer whether or when they will take hold but rather where they are going. This article canvasses the developing jurisprudence surrounding privacy class action litigation in Canada, including the circumstances in which privacy claims arise, issues around harm and damages, and the potential for ongoing influence from American precedents.


Privacy class actions largely fall into three categories: (1) claims that challenge a corporation's business practices, (2) claims that arise from accidental breaches, and (3) claims relating to intentional, targeted conduct. The legal and strategic considerations involved in each category of claims will likely differ. For example, the targeted hacking of a company's server can be costly to an organization's reputation and bottom line. However, such harm may not affect the organization's underlying business model. On the other hand, a challenge to an organization's business practices could affect the viability of the business as a whole.

Inadvertent or intentional conduct by employees may lead to claims of vicarious liability against their employers. Although these categories are discussed separately below, organizations that collect, use, or disclose sensitive customer information in the ordinary course should develop comprehensive privacy policies, practices, and infrastructure that aim to prevent and defend against both the risks associated with business practice challenges and mishap- and crime-based breaches.


Canadian privacy class actions challenging business models and practices relating to the handling of personal information have seen mixed results. Class action jurisprudence challenging corporate privacy practices is still limited: although courts are increasingly willing to find that privacy claims meet the low bar for certification, few proceedings to date have been decided on their merits.1

Online services or products that actively encourage users to provide, use, and share personal information — notably social media companies — are particularly exposed to this type of claim. Litigants have claimed that a company's use or disclosure of personal information has exposed them to harms such as identity theft, harassment, embarrassment, and mental distress.2 Legal claims have been brought on the basis of a reasonable expectation that businesses will protect customers' personal information, a company's alleged contravention of its own privacy policy, the alleged collection, use, or disclosure of personal information without consent, and assertions that a company diverted users' private data to third parties for profit. A selection of recent cases in these last two areas is discussed below.

1) Claims Based on Use or Disclosure of Personal Information without Consent

In 2011, Internet subscribers in Union des consommateurs c Bell Canada3 unsuccessfully proposed a class action in Quebec against Bell Canada in relation to Bell's alleged practice of bandwidth throttling (the slowing of Internet speeds for certain uses). The claim challenged the use of a technology called "deep packet inspection" to collect the content of data transmitted by subscribers using Bell's Internet service. The Quebec Superior Court found that deep packet inspection was used only for traffic management rather than to inspect the contents of the data and thereby declined to authorize the class action, which had been framed on privacy grounds.

More recently, in 2015, the British Columbia Court of Appeal reversed a lower court's decision to certify the class in Douez v Facebook, Inc.4 Douez had challenged Facebook's practice of promoting and earning revenue from "Sponsored Stories." The plaintiff claimed that Facebook had used the names and profile images of users in advertisements sent to the users' contacts without their knowledge or consent and contrary to British Columbia's privacy legislation. The terms of use for the social media site stated that any disputes must be settled in California whereas British Columbia privacy legislation provided that an action under the Privacy Act must be heard and determined by the courts of British Columbia. The motion judge dismissed Facebook's claim that the court lacked jurisdiction, stating that online terms of use for foreign-run social media services do not override the protections of British Columbia's Privacy Act.

The Court of Appeal, deciding the case on conflict of law principles rather than on privacy principles, disagreed with the motion judge, holding that the forum selection clause should be enforced. Relying on the principle of territoriality, the Court of Appeal held that British Columbia law applies only in British Columbia and does not affect the law of other jurisdictions subject to specific recognition by a foreign court or legislature,5 and there was no such recognition of British Columbia law in California in this case. Therefore, the court held that Douez was free to pursue her claim in California.

2) Claims Alleging Personal Information Diverted to Third Parties for Profit

In 2013, the Quebec Superior Court authorized a class action alleging that Apple Inc collected iPhone and iPad users' personal information and disclosed that information to third parties without customer consent.6 The court limited the class to affected residents of Quebec, given the petitioner's reliance on the Quebec Charter of Human Rights and Freedoms and Civil Code of Québec. The plaintiff did not seek damages for the breach of privacy itself and did not claim misuse of the collected personal information. However, the plaintiff alleged that the class members' devices were substantially devalued, both in sale value and available resources (such as battery life and data storage), by Apple's collection and disclosure of data to third parties without knowledge or consent. The case remains pending before the Superior Court.

In 2014, a class action was launched in the Ontario Superior Court alleging that Facebook illicitly intercepted and scanned users' private messages without their knowledge or consent for the purpose of tracking website links in the messages to inflate its web presence and attract advertising revenue (e.g., if a user shared a website link in a private message, this would be reflected as a "like" by the user on that website address).7 The proposed class action, which has not yet been certified, alleges that Facebook's Data Use Policy did not disclose that private messages would be used in this manner; rather, the policy stated that the private messages would be private. Facebook ceased the practice in October 2012 without public announcement. Nonetheless, the suit contends that the proposed class should include all Canadian-resident Facebook users who sent or received private messages containing website links up to the date on which the practice was discontinued.

As the largest social media network with over 1.44 billion monthly active users,8 it is not surprising that Facebook has been the target of multiple class actions in Canada and abroad. Following the trend of Canadian tagalong class actions seen in other areas of litigation, the Sponsored Stories challenge began as a class action in the United States. In 2013, the District Court for the Northern District of California approved a US$20 million settlement to be distributed among American class members, resulting in recovery of approximately US$15 per class member who filed a claim.9

In another recent example, a US class action was commenced against iPhone app developers (such as Path, Twitter, and Electronic Arts), alleging that they engaged in intrusion upon seclusion and violated privacy by uploading users' address books and calendar information to company servers without knowledge or consent. In a 2014 decision, the Ninth Circuit allowed the claim to proceed, stating that "the court does not believe that the surreptitious theft of personal contact information . . . has come to be qualified as 'routine commercial behavior.'"10 It would not be surprising to see a similar claim commenced in Canada, or other jurisdictions worldwide, especially given the gradual expansion of the tort of intrusion upon seclusion in Canadian common law.

To continue reading this article, please click here


1 See, for example, Albilia v Apple Inc, 2013 QCCS 2805.

2 See, for example, Silvestri v Facebook, Inc, C10-00429 (ND Cal 2010).

3 2011 QCCS 1118.

4 2015 BCCA 279, rev'g 2014 BCSC 953.

5 Ibid at para 73.

6 Albilia v Apple Inc, 2013 QCCS 2805.

7 Latham v Facebook (9 April 2014), Toronto CV-14-501879 (Ont SCJ).

8 Facebook Inc, "Company Info" (31 March 2015), online: Facebook Newsroom

9 Fraley v Facebook Inc, 966 F Supp 2d 939 (ND Cal 2013).

10 Opperman v Path, Inc, 2014 US Dist LEXIS 67225 (ND Cal).

Previously published in The Canadian Class Action Review

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions