“What’s sort of new is the potential for recovery for the breach itself, even in the absence of any proven harm,” explains Alex Cameron, a partner and privacy lawyer with Fasken Martineau.
“If you can establish a breach of contract as a plaintiff, it may open the door to the argument that even if you can’t prove harm, the court has the ability to award nominal damages,” says Cameron.
“If you have an incident where a large number of people are involved and even nominal damages are available, that may end the company,” he says. “I think the courts will have to grapple with whether that’s an appropriate response at all when you’re dealing with the class context. I think there will be real arguments to show, in some cases, why that’s not the right approach.”
“It’s almost luck of the draw whether an enterprising plaintiff class action lawyer is contacted by one of the affected individuals and decides to put a case together,” he says.