Privacy class actions are common in Canada. They can involve allegations under federal and provincial legislation, common law torts and Quebec civil law, following data breaches or other alleged breaches of privacy laws. Recent cases, including the first decisions on the merits of privacy class actions, are clarifying this developing area.

Below are trends in privacy class actions that you should be aware of:

  1. The limits of the "intrusion upon seclusion" tort are becoming clear. An Ontario case (under appeal) held that a corporate victim of a data breach is not liable for intrusion upon seclusion because it is not an "intruder" — the hacker is. Another case held that the privacy breach must "cry out for a remedy" to generate liability and that some intrusions into health information are not sufficiently serious to be actionable.
  2. Courts continue to scrutinize the evidence for certification. A recent B.C. decision refusing certification cautioned plaintiffs that they need specific evidence regarding the alleged privacy breach and that news articles or op-eds are insufficient.
  3. Quebec civil law damages principles require plaintiffs to prove current harm that rises above the ordinary annoyances of life. While these principles have made authorization (certification) of privacy class actions difficult, it may be getting easier. Quebec courts recently held that a plaintiff's out-of-pocket purchase of credit monitoring following a data breach is sufficient alleged harm for purposes of authorizing a class action.
  4. The Quebec Court of Appeal upheld a merits decision dismissing a privacy class action, emphasizing that plaintiffs need to prove a causal link between a privacy breach and subsequent incidents of fraud or identity theft. The case also reaffirmed that anxiety or inconvenience following a cyberattack is not compensable unless serious and prolonged.
  5. Settlements in privacy class actions are generally modest per person but can be significant on a class-wide basis. Courts are increasingly approving cy-près distributions of settlement funds to charity rather than class members, particularly where the per-person value is too low to justify the cost of settlement administration.

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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.