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claims related to AI products in the coming
years, Henderson says she anticipates AI
tools to trigger other types of class action
claims, like negligence, breach of contract,
or consumer protection.
"I think it's likely that this will be a growth
area in the next few years," she says.
Shifting from data breaches to
data misuse
For years, privacy class actions in Canada
have focused primarily on consumer data
breaches – scenarios where consumers'
confidential, private, protected, or sensitive
information is exposed to parties who are
not authorized to access it. In recent years,
however, a series of appellate court rulings
has created a distinct split in Canada, in
which some jurisdictions are upholding a
higher bar for class certification on data
breach class actions than others.
In the meantime, another trend in the
privacy class action space has emerged: class
actions that allege improper uses of data
that may have been collected with consent.
"Whether that's using personal informa-
tion to target advertising or other services,
[or] whether that's providing customer or
consumer information to third parties, I
think we're seeing more cases that have to
do with what companies can do with your
data once they have it," Henderson says.
For example, Henderson points to
class actions filed in British Columbia
and Quebec against Flo Health, a popular
menstrual health tracking app, alleging
the company shared consumers' sensitive
data to third parties without their consent.
Unlike privacy class action claims focused
on data breaches, which are typically trig-
gered by criminal activity like hacking,
these claims allege the defendant inten-
tionally misused their data.
Henderson does not expect cases alleging
data breaches to disappear, even though
"the substantive law related to them has
become less favourable to plaintiffs in
certain provinces." Still, she says, plain-
tiffs are "starting to diversify beyond class
actions related to data breaches alone."
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"Plaintiffs are starting
to diversify beyond
class actions related to
data breaches alone"
Nicole Henderson
BLAKE, CASSELS &
GRAYDON LLP
