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PRACTICE AND PROCEDURE - Parties - Representative or class actions 

Thursday, October 08, 2020 @ 6:18 AM  

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Appeal by the defendant from the certification of part of the plaintiffs’ action as a class proceeding. Cross-appeal by the plaintiffs from the refusal to certify their breach of confidence claim and aggregate compensatory damages as a common issue. The action arose from a data breach suffered by the defendant, a federally regulated trust company. Cyberattackers accessed one of the defendant’s databases and obtained personal information about its clients. The class action sought, on behalf of the clients, compensation for harm caused by the dissemination of their personal information. The application judge certified the claims for breach of contract, negligence, breach of privacy and intrusion upon seclusion. He found there was no arguable claim for breach of confidence, unjust enrichment, or waiver of tort. He did not certify compensatory damages as a common issue, finding they would have to be assessed on an individual basis.

HELD: Appeal and cross-appeal allowed in part. The application judge was correct in finding the Personal Information Protection and Electronic Documents Act was not a comprehensive code that precluded the plaintiffs from bringing a common law claim. The pleadings were adequate to make out an arguable cause of action for breach of contract and negligence. The application judge erred in finding the plaintiffs had arguable causes of action for breach of privacy and intrusion upon seclusion arising under federal common law. It was an error to conceive of federal and provincial common law as being separate bodies of legal principles and there was nothing in the claim that took it outside the realm of provincial legislative jurisdiction. The certification of those causes of action was set aside. The application judge did not err in finding a class proceeding was the preferable procedure for a fair and efficient resolution of the common issues. The issue of whether the non-resident subclass was to follow an opt in or opt out model was to be determined by the Supreme Court. The application judge did not err in finding the pleadings did not make out an arguable case for breach of confidence. The damages issue was amended to ask whether a part of the members’ damages could be assessed in the aggregate.

Tucci v. Peoples Trust Company, [2020] B.C.J. No. 1343, British Columbia Court of Appeal, H. Groberman, G.J. Fitch and S.A. Griffin JJ.A., August 31, 2020. Digest No. TLD-October52020007