The Divisional Court recently overturned certification in a data
breach class action in Stewart v Demme, 2022 ONSC 1790, holding that it is appropriate
to screen these cases out early if the evidence shows a data breach
had little to no impact. The decision imposes a high bar on class
action plaintiffs who advance intrusion on seclusion claims for
data breaches that do not result in provable harm.
In the decade since the Court of Appeal first recognized the
tort of intrusion on seclusion, courts have grappled with how to
treat claims involving information that is considered more
sensitive (e.g., financial or health records). Even if the data
breach had little to no impact on the individuals in question,
courts often struggled to screen these claims out at the
certification stage.
