Privacy Litigation | 13
Douglas, James D.G.
Borden Ladner
Gervais LLP
(416) 367-6029
jdouglas@blg.com
Mr. Douglas's commercial
litigation practice
includes shareholder
disputes, M&A litigation,
class actions, broker
liability suits, proceedings
before securities
commissions and self-
regulatory organizations,
and the defence of
criminal charges.
Duchesne, Marc
Borden Ladner
Gervais LLP
(514) 954-3102
mduchesne@blg.com
Mr. Duchesne acts
as lead counsel on
corporate commercial
litigation cases relating to
insolvency, restructuring,
cross-border and foreign
matters, banking,
contracts, insurance and
complex liquidations.
Eizenga, Michael A.
Bennett Jones LLP
(416) 777-4879
eizengam@
bennettjones.com
Mr. Eizenga is Chair of
Bennett Jones's Class
Action Practice. He
teaches class actions at
the University of Toronto
and is co-author of
Class Actions Law and
Practice. Mr. Eizenga is a
Fellow of the American
College of Trial Lawyers.
Du Pont, AdE, Guy
Davies Ward Phillips
& Vineberg LLP
(514) 841-6406
gdupont@dwpv.com
Mr. Du Pont focuses on
tax, corporate, white
collar, class actions,
constitutional and
administrative matters at
all Canadian court levels
with a special expertise in
appellate matters. Fellow
ACTL. Member, ALI. AdE;
TCC Medal.
Dunphy, QC,
Michael E.
Cox & Palmer
(902) 491-4205
mdunphy@
coxandpalmer.com
Mr. Dunphy practises
insurance, commercial
and construction
litigation, including
professional and product
liability, personal injury
and property. He is a
Fellow of the American
College of Trial Lawyers
and of the International
Society of Barristers.
Emblem, Robert D.G.
Clyde & Co Canada LLP
(514) 764-3650
robert.emblem@
clydeco.ca
Mr. Emblem has extensive
experience in advocacy
and dispute resolution
throughout North
America, particularly
in construction claims.
He regularly represents
owners, developers,
contractors, construction
professionals and
their insurers.
"TO SOME VICTIMS, IT MIGHT BE LESS ABOUT THE
DAMAGES THAN THE ACKNOWLEDGEMENT THAT THEY'VE
BEEN WRONGED. THE FACT THAT THE DAMAGES ARE
SYMBOLIC DOES REFLECT THE REALITY THAT, ON A
CERTAIN LEVEL, THIS IS NOT ABOUT THE MONEY."
– Michael Smith, Borden Ladner Gervais LLP
LEXPERT®Ranked Lawyers
dividual acting without fi nancial motive. In essence, Jones was
about pure personal snooping for its own sake. " e Ontario
Court of Appeal found this was a gap that needed to be fi lled."
In Hopkins, she says, there's an existing remedy in health
privacy legislation, and in Evans the class action relies upon
vicarious liability, which she calls a "signifi cant expansion"
upon Jones. Beagan Flood notes that, in his Jones decision,
Justice Sharpe himself warns against expansion of the tort.
"A cause of action of any wider breadth would not only over-
reach what is necessary to resolve this case, but could also
amount to an unmanageable legal proposition that would
… breed confusion and uncer-
tainty," Sharpe says.
"In my view," Beagan Flood
says, "this recent trend toward
class actions is creating exactly
the kind of confusion that
Sharpe warned against."
Perhaps the most expansive
use of the new tort to date is
seen in Condon v. Canada.
e Federal Court certifi ed
the class action March 17,
which alleges the government
failed to comply with its own encryption and storage policies
and internal advice to disclose the loss. But Beagan Flood
notes that no evidence has been presented to show that the
lost information has been accessed by anyone, and a claim for
compensable damages was dismissed.
Christine Carron, a privacy litigator with Norton Rose
Fulbright Canada LLP in Montreal, says she sees the new
tort as a potentially useful tool in breach of privacy cases —
but only in the common-law provinces. Quebec's Charter of
Human Rights and Freedoms and statutory privacy legisla-
tion already recognize compensatory, punitive and moral
damages for breach of privacy.
" ere's an evolving tendency, at least in Ontario, to rec-
ognize moral damages for breach of privacy," and in Evans
the court found that BC and Nova Scotia case law have not
shut the door to this concept, Carron says. Moreover, the
federal Personal Information Protection and Electronic Docu-
ments Act already allows moral damages up to $5,000 for hu-
miliation, which may be seen as supportive of the new tort.
"It remains to be seen how far you can take that" with
regard to class actions for vicarious liability and punitive
damages. But she observes that the new Canadian anti-spam
legislation (CASL) is defi nitely a form of privacy protection
that provides a private right of action.
She predicts intrusion upon seclusion will combine with
CASL and PIPEDA to spawn more breach-of-privacy class
actions in the future.
