Feb 2, 2022
In 2021, the privacy class action arena saw an increase in claims for misuse of information, while more courts screened proposed class actions at the certification stage. Though the occurrence of data breaches has risen along with society’s ongoing digital transformation, Robert Carson, a partner on Osler’s Litigation team, tells Canadian Lawyer that several decisions in the last year don’t see privacy class actions as the inevitable result of data incidents. Instead, courts have stressed that class actions require evidence of actual harm to class members, “beyond speculation of possible harm or general inconvenience or frustration.”
The Court of Queen’s Bench of Alberta’s ruling in Setoguchi v. Uber, Robert says, describes the “gatekeeping function of certification and the need to weed out unmeritorious and de minimis claims at the certification stage.” That case dealt with a data breach, but the Court found no evidence that the hacker had used the information and therefore no evidence of tangible harm.
Similarly, in Simpson v. Facebook, the Ontario Superior Court of Justice dismissed a certification motion for a lack of evidence that any Canadian’s personal data was shared improperly.
“Again, reinforcing the point that certification is meant to be a meaningful screening device,” Robert says.
For more on trends in privacy class actions in 2021, read “Privacy class actions 2021: More misuse-of-information claims, certification used as screening tool” on the Canadian Lawyer website.