Canadian Lawyer

September 2019

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46 www.canadianlawyermag.com FEATURE THOUGH PRIVACY class actions have surged since 2012, and PIPEDA's new manda- tory breach-reporting requirements should keep applications rolling in, two recent failed certifications show judges may be stingier at the certification stage, say litigators. Though it had previously existed in the United States, the tort of intrusion upon seclusion has been in play in Canada since the 2012 Ontario Court of Appeal case Jones v. Tsige. In this invasion of privacy case, the two parties were both employees at the same bank and the dispute began when Tsige shacked up with Jones's former husband and used her position at work to access Jones' personal banking information 174 times. The appeal centred on whether the lower court judge erred in taking the position that Ontario law does not recognize a tort for breach of privacy — a question that has been debated for 120 years, said the ruling by Justice Robert Sharpe. His overturning the decision to dismiss the claim created that tort. Jones v. Tsige has provoked numerous privacy lawsuits — aided by the rise of technology capable of collecting, holding and monetizing data, organizations of all kinds digitizing their records systems and Canada's new Personal Information Protection and Electronic Documents Act. "There certainly was an increase in these types of claims brought, in general, be it in a class action format, on an individual setting, post 2012," says Scott Robinson, a class action and international arbitration lawyer in McCarthy Tétrault LLP's national litigation group. Jones v. Tsige has been significant for class action practice because it made it possible for a plaintiff to get up to $20,000 without proof of economic loss, if they could prove the information intruded on was "particularly sensitive" and caused emotional or mental distress, says Catherine Flood, a partner at Blake Cassels & Graydon LLP in Toronto. Since Jones v. Tsige, digital privacy i n c i d e n t s h av e ra n ge d f r o m r o g u e employees accessing customer files to people posting intimate photos of their former lovers without consent, says Flood. Also proliferating are thieves hacking into the computer systems of organizations, With two recent failed class action certifications in the area of digital privacy, litigators say certification is becoming a higher hurdle to pass. stealing data and demanding a ransom for the return of the information, she says. "We, unfortunately, are increasingly seeing ransom demands," she says. "In some cases, it's a hacker who has encrypted a system; in some cases it's a hacker who's stolen data. And then in some cases, it's someone just making up a story and hoping that if they ask for a small enough amount of Bitcoin people will just pay it rather than take the risk that they actually have something." While Flood says Canada is seeing a "steady stream" of privacy class actions, the view of privacy by courts is evolving. "I think that courts are increasingly recognizing that privacy is inherently subjective and individual," says Flood. "And so, while there are some types of privacy cases that are certifiable, there will be other cases where you're dealing with situations either where there's no damages or where, if there are damages, they're so individual that they should be dealt with through small claims or through the Privacy Commissioner process instead of through class proceedings." LITIGATION Privacy evolves in class actions TWO RECENT PRIVACY CLASS ACTION FAILURES There has been a flood of privacy class action lawsuits since the Ontario Court of Appeal established the tort of intrusion upon seclusion. These new cases have been spurred by rising technology and the ability and lucrative potential for businesses and other organizations of extracting and holding massive amounts of personal data on customers, suppliers and every other party involved in operations. However, lawyers say judges are becoming more scrutinizing at the certification stage.

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