Editor's Note: In a recent Osler Update, Mark Gelowitz, Robert Carson, and Lauren Harper discussed a recent Saskatchewan case denying certification against Facebook. A condensed version of the update is reproduced below.
On July 14, 2021, the Court of Queen's Bench for Saskatchewan dismissed the plaintiff's application for class certification in Kish v. Facebook, Inc., a putative privacy class action. Justice Keene's reasons address the evidentiary requirement of "some basis in fact" and reinforce that the certification process is a meaningful screening device in privacy class actions.
Justice Keene's primary basis for denying certification was the plaintiff's failure to satisfy the evidentiary requirements for certification. Justice Keene struck out all of the evidence led by the plaintiff - which consisted of a proposed expert report and two affidavits from the plaintiff herself - because the evidence did not meet the threshold requirements for admissibility.
- The Expert Evidence: among other defects, the plaintiff did not establish that the proposed expert had the qualifications to answer the questions posed to him. Justice Keene also expressed concerns over the proposed expert's "research", which included relying on documents that had been downloaded from the internet but lacked any badges of reliability.
- The Plaintiff's Affidavits: all of the attachments to the plaintiff's affidavits were provided to her by her counsel, and the plaintiff conceded that she had not even read some of them. Justice Keene held that these documents were inadmissible because the plaintiff did not provide any evidence to show that they were reliable or met other threshold requirements for admissibility.
Justice Keene went on to explain that, in the alternative, even if he were to consider evidence led by the plaintiff, the plaintiff failed to meet any of the five certification criteria prescribed in s. 6(1) of The Class Actions Act. Justice Keene found that there were many defects, including:
- No Cause of Action: the plaintiff's pleadings lacked the requisite particularization to allow the defendants to understand the claims.
- No Identifiable Class: the proposed class was not a single over-arching class sharing common issues. (Rather, it was two mutually exclusive classes: people with Facebook accounts, and people without.)
- No Common Issues: the over-generalization in the pleaded claims and the proposed class definition defeated commonality.
- Not the Preferable Procedure: the claims would require extensive individual inquiries.
The Kish case is another helpful reminder that certification remains a meaningful screening device and that, depending on the facts of the case, there are a variety of strategies that defendants facing putative privacy class actions may be able to use to successfully defeat class actions at a preliminary stage.
Osler represented Facebook, Inc. in this action with a team led by Mark A. Gelowitz, Robert Carson and Lauren Harper.
You can view the full Osler Update and access a link to the decision here.
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