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Top 10 Business Decisions
CO-WRITTEN BY AIDAN MACNAB, BERNISE CAROLINO
THIS PRIVACY class action resulted from
the breach of Trans Union's database by
third-party hackers. Trans Union is a credit
reporting agency whose database stores
millions of people's personal information.
According to the nominator, the case set
an important precedent for privacy class
actions: the tort of intrusion on seclusion
should not apply to organizations hacked by
third parties.
At certification, the plaintiff claimed dam-
ages for negligence and intrusion upon seclu-
sion. e Ontario Superior Court certified
the negligence claims and some claims based
on various provisions of provincial privacy
legislation but to certify the claims of intru-
sion upon seclusion. Trans Union successful-
ly argued on appeal that the intrusion upon
seclusion claim should fail because the plain-
MICHAEL OBODO V. TRANS UNION OF CANADA,
INC., 2023 SCC 62026
• Michael Obodo > Du Vernet, Stewart >
Christopher Du Vernet, Carlin McGoogan
• Trans Union of Canada, Inc. > Osler, Hoskin
& Harcourt LLP> Craig T. Lockwood,
Lauren Harper, Jessica Habib
CLIENTS > FIRMS > LAWYERS
tiff did not plead that the defendant invaded
or intruded upon the plaintiff 's privacy. On
July 13, the Supreme Court of Canada dis-
missed the plaintiff 's leave application.
e ruling leaves the door open for plain-
tiffs' lawyers to bring privacy class actions
arguing negligence, says Joan Young, part-
ner at McMillan LLP and head of the firm's
litigation and dispute resolution group in
British Columbia. is applies when a com-
pany hasn't put in sufficient safeguards to pro-
tect private information. But, she says, when
an outside hacker takes that information, the
company will not be vicariously liable for the
hacker's actions.
"ose privacy [class actions] still contin-
ue to have some legs, but courts have really
been reluctant to push them ahead – or only
push them ahead in limited ways."
Young adds that courts have been reluc-
tant to certify privacy class actions where
there is no evidence that the class suffered
harm from the breach. "e courts are look-
ing for a higher level of evidence," she says.
Obodo was part of a trio of proposed
class actions dealing with similar breach-
es for which the plaintiffs unsuccessfully
argued the defendants were liable for in-
trusion upon seclusion. e other cases
were Owsianik v. Equifax Canada Co.,
2022 ONCA 813 and Winder v. Marriott
International, Inc., 2022 ONCA 815. e
Court of Appeal dismissed all three.
