In September, a proposed class action lawsuit was filed in the Supreme
Court of British Columbia against Google and its parent company,
Alphabet Inc. Filed on behalf of millions of Canadians, the suit alleges
that Google collects and profits from users’ personal information
without their consent.
The proposed suit may be the latest salvo in
actions launched against Big Tech firms alleging privacy violations for
use of user data or for security breaches causing data to be stolen.
Tech firms are facing enhanced scrutiny for two reasons: data
protection and data security, says Matthew Fleming, a partner in the
litigation and dispute resolution group of Dentons Canada LLP in Toronto.
data breaches have caught the attention of the plaintiffs’ class action
bar, the concept of individuals owning their personal information and
companies using that information for profit or other reasons that the
individuals did not agree to has caused an uptick in the number of
proposed class proceedings in the area of data protection, including
against big technology giants such as Google, Facebook and Amazon.
Fleming adds, he has seen lawyers and firms bringing class actions
where they previously weren’t practising in that area and has seen
several instances in which certain firms acting on the defence side have
now shown up on the plaintiffs’ side.
Céline Légendre, a partner at Osler Hoskin & Harcourt LLP’s
Montreal office, says there has been a rise in class actions over the
past couple of years but it’s been steady in the past few months. And
the targets of class actions “will change depending on the situation,”
says Légendre, citing COVID-19-related suits that have been filed.
sectors where class actions are rising include cannabis and — related
to the novel coronavirus pandemic — nursing homes, airlines and events,
as well as those related to societal issues such as solitary confinement
and systemic abuse in schools by religious orders.
“People are more
in tune as to what can be accomplished in a class action . . . in a
civil context, on behalf of a group,” says Légendre. “That’s starting to
be more prevalent as well.”
Fleming also notices an increased focus
on claims against the government, whether it be for the management of a
pension fund or Indigenous peoples bringing claims against the
government for historical wrongdoings or prisoners complaining of their
“Not all class actions are motivated purely by financial
goals . . . but are based on treatment that individuals have received
through government programs or government institutions,” he says. “Class
actions [are] increasingly seen as a tool to remedy unfair treatment,
not just to recover damages.”
In the cannabis sector over the past
year or so, several claims have been commenced against various
participants and, although the majority of claims have been filed in the
U.S., they have also been filed in Canada, principally in the
securities and product liability areas, says Fleming.
obviously a significant growth phase in that industry,” he says, which
is now in a period of retrenchment, “where we’ve left the heady days
behind leading up to legalization, and now that the market is settling
in, that has uncovered certain
issues with some of these companies.”
include problems with public disclosure and some irresponsible players,
and there has been debate as to whether companies had the underlying
assets or resources to support the share prices that they were
commanding. “There was a lot of speculation in the industry. Now that
the market has settled in and developed, people are taking a second look
at the industry, including plaintiff-side class action lawyers.”
law firms have launched class actions for negligence against long-term
care homes and even against provinces where residents have contracted
and died from COVID-19. In June, Koskie Minsky LLP
notified the province of Ontario that it would file a class action
lawsuit against it alleging the province was negligent in its oversight
of nursing homes. That same month, Public Health Ontario reported 1,825
confirmed cases among residents in long-term care facilities, including
1,465 deaths for an overall case fatality rate of 28.4 per cent.
Genova LLP launched a class action in July on behalf of residents of
the 96 long-term care homes in Ontario that experienced COVID-19-related
outbreaks as well as their family members and estates, and Howie Sacks & Henry LLP
announced it was bringing claims “against the owners of any long-term
care homes and retirement homes in Ontario where we believe there have
been inadequate pre-emptive or responsive measures, made by the
administration, to the COVID-19 outbreak.”
“We started tracking
across a variety of sectors, and the one that’s generated the most class
actions across Canada have been nursing homes” in the number of claims
made, says Fleming, who estimates that more than 10 have been commenced
in Canada against long-term care facilities as a result of COVID-19
illnesses and deaths.
“That’s a lot of class actions and a lot of time focused on [that] particular industry.”
In the common law provinces, Craig Lockwood expects to see more and more privacy class actions.
“Particularly, you’ve got the tort of intrusion upon seclusion, and the law is still a little unsettled around that,” says Lockwood, a partner in Osler, Hoskin & Harcourt LLP in Toronto. “So I think you’ll see a lot of activity around the parameters” of that and whether claims “can be brought on a class-wide basis and the issue of damages.”
the securities side, whenever a publicly reporting company has to make
an adjustment to its financial records, it must issue a financial
restatement to investors. In the past five to seven years, Lockwood
says, all the provinces have adjusted their securities acts to allow for
secondary market misrepresentation, and it may be assumed that clients
have relied on a misstatement in the initial public document and can
deem reliance on secondary market provisions. As a result, “almost any
time there’s a restatement, it’s likely that you’re going to see a
securities class action follow immediately” after.
Another issue, he
notes, is the predominance requirement to certify a class action.
Amendments to Ontario’s Class Proceedings Act came into force on Oct. 1
and require that common issues predominate over individual ones; many
are speculating that this will raise the bar for certification and that
plaintiffs will be loath to bring actions in Ontario.
“I don’t know
[that] that’s necessarily the case,” he says, “but at this stage, very
rarely do you see a class action in Canada that’s not national,” meaning
that counsel from different firms in various provinces are
co-ordinating and liaising with each other. “So, I feel the amendments
to the Ontario act may not be as big as people think.”
These were the
first significant amendments to Ontario’s act since the class action
legislation was adopted in 1992, and “they are truly significant,” says
Fleming. “They have raised the bar for plaintiffs at the certification
stage [and] have encouraged preliminary motions, which dispose of all or
part of the claim at an early stage of the proceedings.” The amendments
also promote the early resolution of potential jurisdictional issues
and imposed tighter timelines to provide for the dismissal for delay of
claims that do not proceed in a timely fashion, he says.
conditions for class authorization (or certification) are considered
less stringent. The province is also unusual — and has been seen as more
efficient — in having its own class actions chambers.
“We’ve been under a regime for close to a decade where the conditions are quite liberal,” says Yves Martineau, a partner at Stikeman Elliott LLP
in Montreal. “That’s good for lawyers, but . . . the consequence of
having such a liberal interpretation of the conditions for authorization
are that some cases that should have been weeded out were in fact
authorized” and went to trial.
That said, Martineau praises how
Quebec courts have handled class actions during the pandemic. “They have
been very impressive and efficient,” he says. “While we’ve seen other
areas slowed down, these cases in Quebec are all case managed” with one
judge per case. A small team in the class action chamber in Montreal has
held several virtual hearings and has been “very efficient in not
slowing down too much and reminding [lawyers] we must all do our best in
pushing cases forward. . . . They had to be flexible and adapt, which
Looking ahead, the tip of the pandemic’s iceberg is still at some distance, say Osler’s Lockwood and Légendre.
reality is, we haven’t seen the . . . knock-on effects and economic
repercussions” of the pandemic, says Lockwood. In the privacy sphere,
there are already questions about whether the COVID-19 apps are properly
protecting consumers’ data.
“Almost every sector is dramatically
impacted by these things, [and] the class action regime lends itself to
adjudication of a lot of these issues.”
Légendre likewise sees many
more consumer privacy class actions coming, especially as consumers are
using apps and online platforms so much more.
“Whether it be an app
[or other technology], it just prompts that many more questions that
people will have to resolve through class actions,” she says.