CIVIL PROCEDURE - Parties - Class or representative actions - Certification

Law360 Canada (March 20, 2023, 9:00 AM EDT) -- Appeal by the representative plaintiff, Dione Setoguchi, from certification judge’s decision dismissing her motion to certify a class proceeding against Uber. She argued that the certification judge erred in his approach to damages and over-stepped his gatekeeping role. External hackers illegally accessed electronic data that Uber collected from its drivers and users and stored in a third-party cloud-based service. The appellant was an Uber user at the time of the data breach. She commenced a claim against Uber and applied to certify a class proceeding on behalf of “all persons in Canada whose Personal Information were recorded and/or stored by Uber, including but not limited to Uber Users and Uber Drivers, as of October 1, 2016, and whose Personal Information was accessed by unauthorized individuals in or around October 2016”. The appellant claimed Uber breached its contractual obligations to the class members to protect their information under its user and privacy agreements and Uber breached its duty of care to the class members in relation to collecting, storing, disclosing and using class members’ information. Uber pointed out that in the intervening six years since the data breach, there was no suggestion that any of the class members had suffered fraud or identity theft. The certification judge opined that where there was a breach but no compensable harm, there could be no cause of action....
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