Ontario Class Actions 2021 Year In Review

TOP 3 Legal Developments of 2021

1 Courts Limit Availability of Intrusion Upon Seclusion: In recent years, we have seen a large increase in the number of privacy class actions in Ontario. The main cause of action alleged in most of these cases has been the tort of "intrusion upon seclusion". That tort was recognized by the Court of Appeal ten years ago in  Jones v. Tsige. As defined by the Court of Appeal, the tort requires that the defendant invaded the plaintiff's privacy "intentionally" or "recklessly". Despite this requirement, in many recent class actions plaintiffs sued companies and organizations that were, themselves, victims of cyber attacks. This raised the question of whether the tort could apply to a defendant that did not itself invade the plaintiff's privacy but, rather, allegedly failed to prevent a third party from doing so. In  Owsianik v. Equifax Canada Co., the majority of a panel on Ontario's Divisional Court has now held that a party that