In our previous blog post found here, we discussed the impact of Atlantic Lottery Corporation Inc. v Babstock, 2020 SCC 19 on class action certification jurisprudence, as urging Courts to take a harder look at proposed class actions, and weed out hopeless claims at certification.

The recent decision of Kish v Facebook Canada Ltd, 2021 SKQB 198 is another example of Atlantic Lottery’s impact. In Kish, the Court of Queen’s Bench for Saskatchewan refused to certify a proposed privacy breach class action due to a lack of supporting evidence at certification.

Background

In Kish v Facebook Canada Ltd, the Plaintiff sought certification of a proposed privacy breach class action arising from the Facebook / Cambridge Analytica scandal surrounding the 2016 USA presidential election. As described by the Court, the core of the Plaintiff’s claim was a breach or invasion of privacy arising from the sharing of Canadian users’ personal data with Cambridge Analytica. The Defendants opposed certification on the basis that the Plaintiff’s affidavit evidence was inadmissible, and as a result, there was no evidence supporting the Plaintiff’s application for certification.

Decision

The Court determined it would “tackle the ‘no evidence’ argument right at the get go.” First, the Court determined that the Plaintiff’s affidavit evidence was inadmissible, as follows:

• The Plaintiff’s expert evidence was inadmissible due to lack of qualifications, and alternatively, the information relied upon in the expert affidavit was either outside the expert’s personal knowledge or scope of expertise, of no value to the Court, or unreliable; and
   
• The Plaintiff’s two affidavits were inadmissible due to lack of reliability for evidence provided on information and belief.

As a result of the Court’s decision to strike the three affidavits supporting the Plaintiff’s application, there was no evidence before the Court supporting the proposed class action, and no evidence Facebook had done anything wrong.

However, the Court was prepared to assume, for the purposes of certification, the admissibility of one exhibit—the Joint Investigations of Facebook Inc. by The Privacy Commission of Canada and The Information and Privacy Commission of British Columbia (the “JI Report”) dated April 25, 2019. The JI Report stated there was “no assurance that Canadians’ personal information was not shared with SCL [Cambridge Analytica]”. The Court rejected the argument that this statement in the JI Report created “some basis in fact” to support the Plaintiff’s core issue (i.e. that Canadian users’ personal information was shared with Cambridge Analytica). Accordingly, the Court concluded: “I find that there is no evidence on the record and dismiss the application on this basis.”

In the alternative, the Court considered the requirements from section 6(1) of the Class Actions Act, SS 2001, c C-12.01 and concluded as follows:

• The pleadings did not disclose a cause of action as they contained a “litany of unrelated allegations” but failed to “particularize” any of the claims;
   
• There was not an identifiable class as the Plaintiff sought to certify what was actually two discrete, mutually exclusive classes, with the result that the class “includes every person in Canada”;
   
• The proposed “common issues” were not common and resolution of the issues would not meaningfully advance the litigation;
   
• A class action was not the preferable procedure, and the possibility of class-wide nominal damages did not cure the necessity for individualized inquiries, which would create lengthy delays and be the “antithesis of judicial economy”; and
   
• The Plaintiff was not a member of one of the groups comprising the class and therefore not a proper representative.

Conclusion

Ultimately, the Plaintiff’s application to certify the proposed class action was dismissed for a total lack of evidence on the record. This decision is another example of the impact of Atlantic Lottery, where Courts are taking a closer look at the supporting evidence at certification, and weeding out hopeless claims at an earlier stage.