A Call for Clarity: Ontario’s Disjointed Privacy Class Actions and the Need for Privacy Law Reform

AuthorTheo Milosevic and Ellie Marshall
Pages127-151
127
A Call for Clarity: Ontario’s Disjointed Privacy Class
Actions and the Need for Privacy Law Reform
Theo Milosevic and Ellie Marshall
ABSTRACT: Canadian businesses face a patchwork landscape of privacy
laws which provides little meaningful guidance regarding organizational
responsibilities associated with the use and storage of personal infor-
mation. The slow pace of courtroom-based development in the law has
proved particularly insucient to address these issues. This is evident in
a consideration of privacy class actions in Ontario. Since 2012, Ontario
litigants have raised the tort of intrusion upon seclusion in over a dozen
class action lawsuits. While many of these have passed the certif‌ication
stage, none has resulted in a decision on the merits. This paper argues
that Ontario privacy class actions asserting intrusion upon seclusion
are stuck in a class action purgatory, whereby class actions are repeat-
edly certif‌ied based on unsettled or novel legal concepts associated with
intrusion upon seclusion, but these unsettled issues are never resolved at
trial or otherwise. The paper explains how legal concepts such as intru-
sion upon seclusion can become stuck in a class action purgatory, draws
a comparison between intrusion upon seclusion and the Canadian case
law surrounding waiver of tort, and identif‌ies a number of policy issues
associated with the lack of development in the class action jurisprudence
related to intrusion upon seclusion.

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