Claims for Both Punitive Damages and Damages for Intrusion Upon Seclusion Survive

The Issue

Does entering someone’s house while he is out of the country and stealing his personal documents amount to conduct that is so reprehensible that it might warrant an award for punitive damages on top of damages for breach of privacy? This was the question addressed by the Ontario Superior Court of Justice in Furfari v Pedias, 2019 ONSC 4278 (“Furfari”).

The Facts

The Plaintiff, Mr. Furfari, had previously been friends with the Defendant, Mr. Pedias, and his brother Mario, who was the vice-president of the company that the Plaintiff had previously worked for, and which was now suing him in unrelated action.

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Lack of Signature Block in Emails Fatal to Debt Enforcement

If you find work-related emails to be ubiquitous, you will likely find the same of signature “blocks”, setting out the sender’s name, position and contact information. Block signatures, however, have real legal impact. A recent British Columbia decision (Lesko v. Solhjell, 2019 BCCRT 941) on this point is instructive for any sender or recipient of electronic messaging related to a transaction.

The decision arose from a personal debt matter. At issue was whether emails and texts from the debtor contained an acknowledgment of liability. If not, the claim was statute-barred for tardiness since it was filed (just) over two years after the original demand for payment.

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Use of AI Algorithm Triggers Lawsuit and Countersuit

As artificial intelligence (AI) becomes less of a curiosity and more of an everyday tool, disputes are increasingly arising over its operation and, when things go wrong, the question inevitably arises: whose fault is this and who’s liable? One high-profile example is the ongoing dispute between Hong Kong businessman Samathur Li Kin-kan and London-based Tyndaris Investments, in which Tyndaris is suing its client for $3 million in allegedly unpaid fees. In a countersuit, Mr. Li is claiming $23 million in damages allegedly resulting from Tyndaris’ use of algorithmic trading in managing his portfolio.

Tyndaris Case

The dispute centers around whether Tyndaris misled its client as to the AI’s capabilities, which means that the AI’s performance itself will be adjudicated.

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Court Finds Language of Privacy Act Precludes Arbitration of Privacy Disputes

Overview

There have been a number of recent decisions in the arbitration space regarding when it is appropriate to stay litigation in favour of arbitration and where it is not. In particular, recent appellate case law (e.g., Wellman, and Heller) discusses and interprets the principle set out in Seidel v. TELUS Communications Inc., 2011 SCC 15 that arbitration clauses will generally be enforced “absent legislative language to the contrary.”

In particular, these cases address whether statutory language in consumer protection and employment legislation constitutes “legislative language to the contrary” that precludes parties from agreeing to arbitrate. However, there was no case law that considered this issue in the context of the various privacy statutes that exist across Canada – until now.

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Defendants Awarded Costs Where Bringing Breach Class Action Was “Questionable”

In the costs motion (Kaplan v. Casino Rama, 2019 ONSC 3310) arising from the litigation regarding the Casino Rama breach, Justice Belobaba awarded costs to the defendant, saying there was neither public interest nor a novel issue sufficient to warrant costs being awarded to the plaintiffs. Justice Belobaba was of the view that the very basis for bringing the class action was questionable, a fact which played a role in the plaintiffs having to pay. This decision may have class counsel more closely scrutinizing the merits of bringing data breach class actions.

Background

In an earlier decision released on May 7, 2019, Justice Belobaba dismissed the plaintiffs’ motion for certification, finding that the proposed class action “collapsed in its entirety” at the common issues stage.

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Certification of Breach Class Action Denied in Absence of Provable Losses, Commonality

On May 7, 2019, Justice Belobaba denied the motion for certification in the class action brought against Casino Rama relating to a 2016 data breach (Kaplan v. Casino Rama, 2019 ONSC 2025). Despite having five representatives, the plaintiffs were unable to show provable losses, which significantly hampered their case. What was ultimately fatal to the motion, however, was the lack of commonality, leading Justice Belobaba to remark:

The problem here, with almost all of the [proposed common issues (“PCI”)], is that there is no basis in fact for either the existence of the PCI or its overall commonality or both.

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