The Personal Insurance has settled the class action commenced against it as a result of its use of credit scores in investigating accident benefit claims, by paying $2,250,000.00.

The decision approving the settlement is interesting for its discussion of whether a class action can be commenced in the Federal Court following the release of a decision from the Federal Privacy Commissioner. Defence counsel took the position that only the representative plaintiff (who had obtained a decision from the Federal Privacy Commissioner) had standing to bring a federal action, and that no other class member (who did not also have a decision from the Federal Privacy Commissioner) had standing. Therefore, counsel argued, a class action could not be brought in federal Court.

Plaintiff’s counsel, instead of contesting jurisdiction, commenced a class action at the provincial level in Ontario, which was the action that was settled. Query whether defence counsel’s tactics aided Personal Insurance, or merely set a new precedent whereby plaintiff counsel no longer need to sue in federal court in order to rely on a breach of PIPEDA as the basis for a privacy class action.

In addition, this is yet another privacy class action that has settled for a relatively small “per claimant” amount, of approximately $150.00-$175.00 per class claimant (depending on the take-up rate).

Plaintiff counsel’s fee from the $2,250,000.00 was $500,000.00, at an estimated multiplier from time incurred of 1.16, which is quite a modest return, in the scope of class actions.

See: Haikola v. The Personal Insurance Company, 2019 ONSC 5982 (CanLII

Mikel Pearce

Mikel (pronounced “My-Cle” or “Michael”) is a trapeze artist trapped in the body of an insurance defence and coverage lawyer. His name might suggest that he is Catalan Spanish, but no one in Mikel’s family is Spanish. Or Catalan. Although he does like cats.

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