Judicial Economy, Access To Justice And Certainty In The Law

The Supreme Court of Canada's Denial of Leave to Appeal in the Intrusion Upon Seclusion Trilogy

On July 13, 2023, the Supreme Court of Canada denied leave to appeal from three Ontario Court of Appeal decisions declining to apply the tort of intrusion upon seclusion to "database defendants" (i.e., organizations that collect and store personal information in the course of carrying on a commercial activity and whose databases are "hacked" by unauthorized third parties). The Supreme Court of Canada's denial of leave is a significant development for database defendants, as data breach plaintiffs must now prove compensable loss to make out a claim against such defendants in connection with a breach by an unauthorized third party. This can pose a substantial challenge for plaintiffs, particularly in class actions, where the plaintiff class has not incurred sufficiently serious or compensable losses rising above everyday reasonable expenses or inconveniences.