Table of contents
- Doan c. Clearview AI Inc., 2024 QCCS 213
- Situmorang v. Google, LLC, 2024 BCCA 9
- Doan v. Clearview AI Inc., 2023 FC 1612
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Doan c. Clearview AI Inc., 2024 QCCS 213
Read more about the case: Doan c. Clearview AI Inc., 2024 QCCS 213
Facts
The petitioner sought authorization to institute a class action in compensatory and punitive damages against the respondent Clearview AI Inc. The respondent's activities involve the practice of "scraping," which uses multiple data collection programs — or "web crawlers" — to scan the Internet and collect images of individuals. The petitioner alleges that the respondent collected and extracted, on a massive scale, class members' photographs and other personal information, without their consent, for commercial purposes. According to the petitioner, the respondent's actions, including the collection, storage and use of their images and information, as well as the extraction of their biometric information, constituted a violation of their right to privacy, which is protected under Article 5 of the Québec Charter of Human Rights and Freedoms.
The respondent filed an application for leave to submit relevant evidence under article 574 of the Code of Civil Procedure, namely factual clarifications about its operations, extracts of evidence given by the petitioner in its proceedings before the Federal Court and the petitioner's statement of claim before the Federal Court.
Decision
The court allowed only the filing of the petitioner's statement of claim before the Federal Court. According to the court, this evidence will allow the respondent to demonstrate that the Federal Court class action involved the same proposed representative plaintiff, similar facts and similar allegations. The court highlighted the fact that the Federal Court had previously found that none of the criteria for certification were met in this case, and that decision was not appealed. The court reasoned that allowing the introduction of other evidence would lead to an adversarial debate contrary to the purpose of the authorization process, which is to weed out frivolous and meritless claims.
The court further concluded that its jurisdiction over the proposed class action should be addressed on the merits. The constitutional issue should be considered only if necessary, in light of the facts of the case and the statutory background. In the court's view, the authorization stage is not the appropriate time for such a debate. Therefore, for the purpose of deciding the authorization issues, the court considered that Article 3148(3) C.C.Q. benefits from a presumption of validity.
Key Takeaway
When faced with an application to adduce relevant evidence by defendants under article 574 of the Code of Civil Procedure, the court must ensure that the introduction of the evidence will not lead to an adversarial debate contrary to the purpose of the authorization process.
The Court's jurisdiction over a proposed class action should be addressed on the merits and the constitutional issue should be considered only if necessary. The authorization stage is not the appropriate time for such debate.
Situmorang v. Google, LLC, 2024 BCCA 9
Read more about the case: Situmorang v. Google, LLC, 2024 BCCA 9
Facts
The appellant appealed from an order dismissing his application to certify a class proceeding, and dismissing the action itself, on the basis that the notice of civil claim did not disclose a cause of action.
This proposed class action involves allegations against Google LLC for using facial recognition technology to extract, collect, store and use the facial biometric data of thousands of Canadians without their knowledge or consent. The appellant argued that this conduct violated their privacy rights and pleaded causes of action under the British Columbia Privacy Act (B.C. Privacy Act) and the common law tort of intrusion upon seclusion. The appellant also seeks remedies under provincial consumer protection legislation, claiming that Google engaged in deceptive and unconscionable practices.
Decision
The first judge dismissed the appellant's application to certify the action as a class proceeding, and ultimately dismissed his action, stating that the notice of civil claim did not disclose a cause of action pursuant to section 4(1)(a) of the Class Proceedings Act and that it was not in the interests of justice to allow the appellant to amend the claim.
The Court of Appeal found that the first judge erred in mischaracterizing the nature of the appellant's claims, and in her approach to assessing the viability of the pleaded claims. According to the Court of Appeal, this affected her analysis of the causes of action, leading to errors in assessing the elements of the claim. The Court of Appeal pointed out that, assuming the facts pleaded to be true, the notice of civil claim does disclose a cause of action for breach of privacy under the B.C. Privacy Act. The Court of Appeal further determined that, while there are deficiencies in the pleaded claims for remedies under provincial consumer protection legislation, the appellant should have an opportunity to address the deficiencies through amendments. The elements of the common law tort of intrusion upon seclusion are sufficiently pleaded. The issue of whether a common law privacy tort exists in British Columbia should be raised, as necessary, with the court below on the remittal.
Key Takeaway
When determining whether a claim discloses a cause of action, the court should assume the pleaded facts as true, read the claim generously and avoid addressing the merits of the claims. It is essential for judges to accurately characterize the nature of the claims and refrain from weighing evidence at this stage.
Doan v. Clearview AI Inc., 2023 FC 1612
Read more about the case: Doan v. Clearview AI Inc., 2023 FC 1612
Facts
The plaintiff sought to certify a class action against Clearview AI Inc., a corporation that provides facial recognition and identification services, alleging copyright infringements and violations of the moral rights of the class members.
The plaintiff claimed that Clearview's conduct involved the collection, possession, reproduction, use, distribution, rental, sale and offering for rent and sale of photographs without the consent of the rights holders. She argued that Clearview's actions amounted to copyright infringements and other violations of the Copyright Act.
Decision
The only issue was whether the court should certify the action as a class action. The court dismissed the plaintiff's motion for certification, finding that people could not determine whether they are members of the class and the plaintiff had not established that Clearview possesses or can analyze the relevant metadata necessary to identify the class members. The plaintiff had not established an identifiable class of two or more persons, which is a certification requirement under the Federal Courts Rules.
Key Takeaway
In privacy class actions, it will often be challenging for plaintiffs to identify an appropriate class definition. This is an example where the plaintiff's inability to do so was fatal to the certification motion.
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