How to participate in the growing number of privacy class actions in Canada

With Equifax among the latest in the increasing number of privacy class actions being launched in Canada, affected consumers looking to join such lawsuits may be surprised to learn that in many instances they've already been opted in.

In most provinces in the country, anyone who has the same legal complaint as a plaintiff who launches any type of class action can automatically share in any potential settlements provided they make a rightful claim in time, say legal experts.

Not surprisingly, the number of Canadian privacy class actions has rapidly increased within the last six years, according to business law firm Osler.

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Based on Osler's internal tracking, the firm says a total of 62 privacy class actions across Canada have been launched since 2005. However, Osler identified only two privacy class actions commenced prior to 2010. That year there were three new privacy class actions, rising to seven in 2011, and 10 in each of 2012 and 2013. Following a slight dip in 2014 and 2015, there were 11 commenced in 2016.

Hacking incidents accounted for about one-third of all privacy class actions, with misuse of information by employees and theft or loss of physical media containing personal information also accounting for a significant proportion of privacy class actions.

Canadians have already seen their fair share of major privacy breaches this year.

Equifax said on Sept. 7 that it fell victim to a massive cyberattack in the summer that may have compromised the personal data of 143 million Americans and 100,000 Canadians. In May, BCE Inc.'s Bell Canada issued an apology to customers after it said nearly 1.9 million customer e-mail addresses and 1,700 names and phone numbers were illegally accessed.

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According to Osler, nearly half of privacy class actions initiated in Canada have been commenced in Ontario which is not surprising given that most national class actions are initiated in this province purely for logistical reasons, says lawyer Jeff Orenstein of the class action law firm Consumer Law Group.

"That's where most company's head offices are, where all the big law firms are," Orenstein said.

But that's not to say that a class action launched in Ontario will see all Canadians automatically opted in. Residents in New Brunswick, Newfoundland and Labrador, and British Columbia must choose to opt in, said lawyer Tony Merchant, whose firm Merchant Law Group LLP has launched a class action on behalf of Canadians affected by the Equifax data breach on August.

"But everywhere else in Canada you're a part of the class action unless you opt out," added Merchant, noting that in most circumstances Quebec is also an opt-out province unless there are certain jurisdictional issues.

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Residents of B.C., New Brunswick, or Newfoundland and Labrador will only be automatically opted into class actions launched in their own respective provinces.

Merchant's firm has initiated one of at least two Canadian class actions commenced against Equifax.

Last week, an Ontario resident proposed a class action in Ontario Superior Court. The lawsuit, represented by law firm Sotos LLP, is seeking $550 million in damages on behalf of Canadian victims of the Equifax hack.

Neither Merchant Law or Sotos have had their proposed class actions certified in court yet. Equifax said in a statement that it cannot comment on pending litigation.

Both Orenstein and Merchant say it's important for Canadians to stay on top of class actions if they want to benefit from any potential settlements, as cases can take years to work their ways through the courts.

If there is a judgment in favour of a class action, notice is usually given to all eligible parties by publication in various newspapers or by direct mail, providing detailed instructions of what you need to submit and where you need to send your claim.

But once a class action has been settled there's a limited time period in which you can make a claim, after which your rights are wiped out.

Orenstein says that even in instances where high-profile class actions are successful, "a five per cent take-up rate is considered impressive."

An easy way to stay on top of class actions is to sign up for updates through the websites of the law firms that launch them so as to not miss out on your right of recovery.