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 information. The slow pace of courtroom-based development in the law has proved particularly insufficient 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 repeatedly 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 intrusion 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.
Milosevic et al. (Tue,) studied this question.