Canada: Class Actions Vs Individual Lawsuits: The Equifax Litigation

Last Updated: March 26 2018
Article by Canadian Class Actions Monitor, Sandra Aigbinode and Mark Keohane

Most Read Contributor in Canada, September 2018

The New Year began with yet another lawsuit against Equifax, Inc. and their Canadian counterpart, Equifax Canada Co. (collectively, "Equifax"). This time a proposed province-wide class action commenced in British Columbia on January 10, 2018. So far, several legal avenues are being utilized by affected individuals which raises interesting legal considerations discussed below.

Brief Recap

Equifax encountered a large security breach in the second quarter of 2017. Some 8,000 Canadians have been affected by the breach, as well as an estimated 143 million Americans, leading to several class action lawsuits throughout Canada and the United States.

British Columbia Courts

On January 10, 2018, Joshua Elliott Temple filed a class action claim at the Supreme Court of British Columbia. The proposed class is limited to those residing in British Columbia who were affected by the breach.

Mr. Temple was an Equifax monthly subscriber who was notified of a breach of his personal information in October 2017. The allegations in Mr. Temple's claim are for breaches of provincial1 and federal2 privacy legislation, negligence, negligent misrepresentations, breach of contract, and that Equifax has been unjustly enriched.

While the proposed class in Mr. Temple's action is limited to British Columbia residents, the Agnew-Americano Claim (defined and discussed below) is Canada-wide, and includes any person in Canada that meets the class definition. In most cases, plaintiff class counsels cooperate and do not compete to represent common claimants, but Mr. Temple's action could be subject to a stay if the Supreme Court of British Columbia is convinced that there is no suggestion that multiple claims serve any legitimate interest of the proposed plaintiffs. The same issue may arise if claimants pop up in other provinces, such as Alberta.

This proceeding is still at its initial stages. We will have to wait and see whether the proposed class action is certified by the court.

Ontario Courts

Sotos LLP and Merchant Law Group both issued class action claims in Ontario on September 12, 2017. Bethany Agnew-Americano and the proposed representative plaintiff are represented by Sotos LLP (the "Agnew-Americano Claim"). Laura Ballantine (replaced by Adele Perisiol in the amended statement of claim) was the representative plaintiff in the claim advanced by Merchant Law Group (the "Ballantine Claim"). Both claims involved the representative plaintiffs' personal information being compromised after the data breach affected their respective Equifax accounts.

Both firms brought motions asking the court to determine which of the plaintiffs should have carriage of the class action brought against Equifax. Justice Glustein of the Ontario Superior Court of Justice issued his decision on January 24, 2018.3

Justice Glustein held that the Agnew-Americano Claim was more likely to advance the interests of the class. Justice Glustein used the factors set out by the Ontario Court of Appeal in Mancinelli v. Barrick Gold Corporation4 and the Ontario Supreme Court in Kowalyshyn v. Valeant Pharmaceuticals International Inc.5 to consider the carriage motion. Successful carriage of the class action can mostly be attributed to the broader scope of the Agnew-Americano Claim.6 While the Ballantine Claim simply alleged negligence, the Agnew-Americano Claim included a claim for intrusion upon seclusion, a tort recognized by the Ontario Court of Appeal in 2012,7 as well as negligence, alleged breaches of contract, consumer protection legislation and privacy legislation.8 The Court held that these allegations expanded the basis of the claim for class members since, among other things: (1) the tort of intrusion upon seclusion can sustain an action even if the claimant hasn't suffered any economic harm;9 and (2) contractual and consumer protection remedies extend the class to those with a contractual relationship.10 Other factors considered by the Court included affidavit evidence proving the privacy law expertise of Sotos LLP lawyers, the steps Sotos LLP had taken to protect the interests of the class members and the fact that Merchant LLP did not have a written retainer prior to commencing the Ballantine Action.11

United States Small Claims Courts

Canadian plaintiffs may also choose to follow the lead of a few of our American neighbours who have utilized small claims courts as opposed to pursue larger class action lawsuits. With the help of online tools to electronically fill out small claims forms, some Americans have won judgments in the area of $10,000 in a quick trip to the court house. However enticing this may seem, there are drawbacks to this approach. Equifax can appeal these decisions, and some self-represented litigants have had difficulties articulating complex legal concepts in court. Filing the claim is one thing, arguing and winning a case is another. What seemed like an expedited approach at first may be turning in to a real-life example of why class action proceedings exist in the first place (i.e. access to justice, avoiding multiplication of cost and effort, etc.).

Conclusion

While Canadians who have been affected by the Equifax breaches weigh their options, including the already existing Canada-wide class action, it is possible that other province-wide class actions may commence. These class actions may result in overlapping claims. There remains the possibility that individuals will consider small claims actions an alternative as has happened in the United States. We'll just have to wait and see how all these claims interact with one another.

Footnotes

1 Personal Information Protection Act, SBC 2003, c 63; Privacy Act, RSBC 1996, c 373.

2 Personal Information Protection and Electronic Documents Act, SC 2000, c 5.

3 Agnew-Americano v. Equifax Canada, 2018 ONSC 275 [Agnew-Americano].

4 2016 ONCA 571.

5 2016 ONSC 3819.

6 Agnew-Americano at paras 11-14.

7 Jones v Tsige, 2012 ONCA 32.

8 Agnew-Americano at para 42.

9 Ibid, para 139.

10 Ibid, paras 15, 19.

11 Ibid, paras 211-228, 239-252 and 258-275.

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