Doan v. Canada

Doan v. Canada
Court (s) Database
Federal Court Decisions
Date
2023-07-18
Neutral citation
2023 FC 968
File numbers
T-724-20
Decision Content
Date: 20230718
Docket: T-724-20
Citation: 2023 FC 968
Ottawa, Ontario, July 18, 2023
PRESENT: Madam Justice St-Louis
PROPOSED CLASS PROCEEDING
BETWEEN:
HA VI DOAN
Applicant/Plaintiff
and
HIS MAJESTY THE KING
Respondent/Defendant
ORDER AND REASONS
I. Overview [1] On August 27, 2021, Ms. Doan filed a Motion to certify an action as a class proceeding and for her appointment as Class Representative [Motion for certification] under part 5.1 of the Federal Courts Rules, SOR/98-106 [Rules]. Ms. Doan’s Motion for certification relates to the action she initiated against Canada, as a class proceeding, in connection with the Royal Canadian Mounted Police [RCMP]’s involvement with Clearview AI Inc. [Clearview], a United-States based corporation that provides facial recognition and identification services using a facial recognition technology.
[2] Ms. Doan asserts that the conditions for certification set forth in Rule 334.16(1) of the Rules are met as: (1) her pleadings disclose a reasonable cause of action; (2) the Class and Subclasses are identifiable and are composed of two or more persons; (3) the claims of the Class Members raise common questions of law or fact; (4) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions; and (5) she is an appropriate Class Representative.
[3] In response to the Motion for certification, His Majesty the King [Canada] submits that none of the conditions required for certification are met. Canada first stresses out that Ms. Doan does not plead any material fact that Canada looked for, saw, or copied some information related to her, and that it is therefore illusory to speak of violations of her rights or of causation.
[4] Canada thus responds that (1) it is plain and obvious Ms. Doan’s pleadings do not disclose a reasonable cause of action; (2) some statements Ms. Doan swore in her affidavit must be given no weight and the third-party reports adduced in exhibits are not admissible for the truth of their contents; (3) the Class is overbroad, not rationally connected to the claims and is not identifiable; (4) the proposed common questions are overbroad and no evidence supports them; (5) a class proceeding is not appropriate as individual issues would predominate and alternative measures to a class proceeding could resolve Ms. Doan’s claims; and (6) Ms. Doan cannot represent a Class where she has no reasonable personal cause of action against Canada.
[5] In her underlying action, Ms. Doan claims that Clearview collects, copies, stores, uses, discloses, and sells personal biometric information, including facial photographs of residents and citizens of Canada [the Collected Photographs], without their knowledge or consent. She also claims that Clearview developed an algorithm allowing it to extract the biometric information contained in these Collected Photographs of human faces, effectively creating a unique “face print” for virtually every individual whose photograph(s) appears on the internet.
[6] Ms. Doan then essentially claims that by becoming a client of Clearview, the RCMP itself, as an agent of the federal Crown, willfully obtained access to and used Clearview’s illicit database without assessing whether the tool was legal, thus, generally engaging its liability on the grounds of negligence and invasion of privacy and more particularly by:
1)violating section 8 of the Canadian Charter of Rights and Freedoms, the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK) 1982, ch. 11 [the Charter];
2)engaging vicarious liability of the Crown under the Crown Liability and Proceedings Act, RSC 1985, c C- 50 [Crown Liability Act] under (a) common law torts of negligence (b) intrusion upon seclusion, and where the actions of the RCMP took place in Québec, for civil liability under (c) article 1457 of the Civil Code of Québec, SQ 1991, c 64 [Civil Code]; and (d) section 49 of the Charter of Rights and Freedoms, RSQ, c C-12 [Québec Charter]; and
3)committing copyright infringement and moral rights violations under the Copyright Act, RSC, 1985, c C-42.
[7] Ms. Doan proposes one Class that includes two Subclasses, hence the Privacy Breach Class and the Copyright Infringement Class, described as follows in her Re-Re-Amended Statement of Claim:
All natural persons, who are either residents or citizens of Canada, whose faces appear in the photographs collected by Clearview Inc. through July 6, 2020 (the “Collected Photographs”) (the “Privacy Breach Class” or the “Privacy Breach Class Members”);
All natural or legal persons holding copyright and moral rights with respect to the Collected Photographs (the “Copyright Infringement Class” or the “Copyright Infringement Class Members” and, collectively with the Privacy Breach Class, the “Class” or “Class Members”).
[8] In her underlying action, Ms. Doan, on her own behalf and on behalf of Class Members, seeks an award in damages, including punitive damages, declaratory reliefs against the RCMP, as well as an order enjoining the RCMP to remit to the Privacy Breach Class Members all the documents and information obtained with respect to them and destroy all copies.
[9] For the reasons that follow, I will dismiss Ms. Doan’s Motion for certification. In brief, I find that the conditions set forth in Rule 334.16(1) are not met in that (1) it is plain and obvious that the pleadings, assuming the facts pleaded to be true, disclose no reasonable cause of action; (2) the open-ended leave to amend sought by Ms. Doan is not appropriate in the circumstances and will thus not be granted; and (3) Ms. Doan has not established some basis in fact to meet all the other conditions of Rule 334.16 (1).
[10] As all the conditions of Rule 334.16(1) must be met in order for a class proceeding to be certified, and since I found none of the conditions are met, the Motion for certification cannot be granted.
II. Context [11] Ms. Doan is a resident of Montréal, Québec and a photographer. It is not disputed that she posts a large number of photographs that she has taken of herself, of her family, and of her clients on various public internet and social media sites for commercial purposes. Her clients also post photos she has taken of them online for commercial purposes.
[12] In October 2019, the RCMP purchased some licenses to use Clearview. RCMP members used Clearview via its licenses and a number of free trial accounts.
[13] On February 21, 2020, the Office of the Privacy Commissioner of Canada [Privacy Commissioner] and three provincial counterparts, i.e., the Commission d’accès à l’information du Québec, the Information and Privacy Commissioner for British Columbia, and the Information and Privacy Commissioner of Alberta [the Offices], initiated a joint investigation into Clearview’s activities in Canada. On February 2, 2021, the Offices issued their report in regards to Clearview’s activities, entitled, “PIPEDA Findings #2021-001” [Investigation Report]. In brief, the Investigation Report found that Clearview collected, used and disclosed personal information without the requisite consent and for an inappropriate purpose. Accordingly, the Offices found that Clearview contravened the privacy legislations of these provinces and the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 and they issued recommendations.
[14] On February 28, 2020, the Privacy Commissioner initiated another investigation, this time into the RCMP’s use of facial recognition technology in Canada. On June 2021, the Privacy Commissioner submitted a Special Report to Parliament entitled, “Police Use of Facial recognition technology in Canada and the Way Forward” [Special Report]. The Privacy Commissioner concluded that the RCMP’s collection of personal information from Clearview was in contravention of section 4 of the Privacy Act, RSC, 1985, c P-21. The basis for this finding was that Clearview’s collection of personal information of Canadians was in contravention of the law. The Special Report concluded that there were serious and systemic failings by the RCMP to ensure compliance with the Privacy Act before it collected information from Clearview and, more broadly, before novel collection of personal information in general.
[15] In regards to Charter breach allegations by the RCMP, the Privacy Commissioner stated in its Special Report that: “While we are not making any conclusions as to the RCMP’s compliance with the Charter in using Clearview technology, in our view, it should have been clear to the RCMP that both the collection from a privately-collected database, and the collection of information via facial recognition technology, warranted assessment from the RCMP for compliance with the Charter and common law principles” (Special Report, Plaintiff Motion Record at 108).
[16] The Privacy Commissioner recommended that, within 12 months, the RCMP institute systemic measures and pertinent training to understand, track, identify, assess, and control the novel collection of personal information to ensure collection is limited as required by the Privacy Act.
[17] In July 2020, Clearview ceased all activities in Canada.
[18] On July 8, 2020, Ms. Doan instituted her action against Canada, as a class proceeding, and on August 27, 2021, Ms. Doan filed her Motion for certification and for her appointment as Class Representative. She provided proposed common questions of law and/or fact (Appendix A), a litigation plan for the proceeding (Appendix B), and an agreement respecting fees and disbursements between the Plaintiff and Class Counsel (Appendix C).
[19] With her Motion Record, Ms. Doan submitted her own affidavit, sworn on August 27, 2021, introducing 12 exhibits. In her affidavit, Ms. Doan affirms that, as the Plaintiff in this proposed class proceeding, she has personal knowledge of the matters on which she deposes. Notably, Ms. Doan attached to her affidavit two documents marked respectively as Exhibits 10 and 11. Exhibit 10 shows the results of an inquiry with Clearview in the form of seven distinct identified photographs of Ms. Doan, her minor child, and one or more unrelated Asian women. Most of these photographs appear to be from her public “Vivian Doan Photography” Instagram account, while others are from her public Twitter account, her commercial website, and two unrelated sources. Exhibit 11 contains results of the inquiry with Clearview in the form of photographs taken by Ms. Doan of another individual.
[20] On January 20, 2022, Canada cross-examined Ms. Doan. The transcript revealed that upon cross-examination, Ms. Doan indicated that many paragraphs of her affidavit were based on unspecified media sources and she would have to consult her counsel in order to explain how she knew them to be true, and appeared unfamiliar with some exhibits. She confirmed having never herself used Clearview’s services.
[21] In response, Canada submitted affidavits sworn by: (1) Ms. Isabelle Nicolas, paralegal for Justice Canada, sworn on October 25, 2021, introducing three exhibits relating to other proceedings; (2) Mr. Justin Ducette, acting manager of Policy and Governance for the RCMP Technical Operations Strategic Branch, sworn on October 25, 2021, and testifying essentially as to the extend of the RCMP’s use of Clearview; and (3) Arnold Guerin, Cybercrime program Officer for the United Nations Office on Drugs and Crime, sworn on October 25, 2021. Mr. Guerin previously held a position in the RCMP’s National Child Exploitation Crime Centre and testified on the use of Clearview in that regard.
[22] Notably, Mr. Guerin affirmed, having executed searches with Clearview’s database, that the user would upload a picture, the tool would perform the search and the results appeared as headshots and provided links to where the match was on the internet. Mr. Guerin affirmed that these headshots and links were the only output that the user received. The user would click on the link, the user’s web browser would launch and open the URL to the public internet page where the image was found (Guerin affidavit at paras 10, 11, 13).
[23] Canada’s affiants were not cross-examined.
[24] On the morning of the Motion for certification’s hearing, Ms. Doan filed a Re-Re-Amended Statement of Claim and revised common questions. Canada took no position in regards to the Re-Re-Amended Statement of Claim and it was accepted for filing.
[25] In her Re-Re-Amended Statement of Claim, Ms. Doan asks the Court to certify the aforementioned Class that includes two Subclasses, hence the Privacy Breach Class and the Copyright Infringement Class.
[26] Ms. Doan, on her own behalf and on behalf of the Class Members, seeks the following remedies from the Court:
a)an order certifying this action as a class proceeding and appointing her as the representative plaintiff under the Federal Courts Rules, SOR/98-106;
b)a declaration that the RCMP engaged its liability and violated the rights of the Class Members by becoming a client of Clearview and willfully obtaining access to its database, and by running searches in Clearview’s database;
c)[…];
d)a declaration that the RCMP cannot engage with Clearview and use its services […];
e)an order enjoining the RCMP to remit to the […] Privacy Breach Class Members of all the documents and information obtained from Clearview with respect to them (the “Illegally Obtained Documentation and Information”) and destroy all copies of […] the Illegally Obtained Documentation and Information;
f)general pecuniary and non-pecuniary, special, punitive and/or statutory damages for negligence, willfully obtaining access to an illicit database, […] copyright infringement and moral rights violations;
g)general pecuniary, non-pecuniary, punitive and/or aggravated damages for privacy breaches, including invasion of privacy (commission of the tort of intrusion upon seclusion), and including under s. 49 of the Charter of Human Rights and Freedoms, CQLR c C-12 (the “Quebec Charter”);
h)damages pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms, the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11;
i)an order for aggregate assessment of damages owed to the Privacy Breach Class Members and to the Copyright Infringement Class Members;
j)pre-judgment and post-judgment interest pursuant to sections 36 and 37 of the Federal Courts Act, RSC 1985, c. F-7;
k)the costs of notice and of administering the plan of distribution of the recovery in this action, plus applicable taxes;
l)such further and other relief as this Honourable Court deems just.
III. Order sought on this Motion for certification [27] In her Motion for certification, Ms. Doan seeks the following orders from the Court:
An order seeking certification of this proposed class proceeding (the “Proposed Class Proceeding”) as a class proceeding pursuant to s. 334.15 and ff. of the Rules; An order defining the class (the “Class” or “Class Members”) […] An order appointing Plaintiff as the representative plaintiff of the Class (the “Representative Plaintiff”); An order stating the nature of the claims made on behalf of the Class against Defendant as follows:
a) claims in negligence, moral rights violations, privacy rights violations (including intrusion upon seclusion), and secondary infringement against the RCMP for retaining the services of Clearview, and for wilfully obtaining access to Clearview’s database containing personal biometric information and copyrighted materials, including the Collected Photographs, which were/are collected, copied, stored, used, disclosed and sold in violation of the rights of the Class Members;
b) claims in negligence, moral rights violations, privacy rights violations (including intrusion upon seclusion), and secondary infringement against the RCMP for retaining the services of Clearview and for wilfully obtaining access to its database prior to assessing whether the tools offered by Clearview were appropriate and legitimate, and whether Clearview disclosed its activities and the creation and the existence of its database, containing personal biometric information and copyrighted materials, to competent authorities;
c) claims in violations of the constitutional right not to be subject to unreasonable search and seizure;
An order setting out the questions contained in Appendix A to this Notice of Motion (the “Notice” or “NOM”) as the common questions of law or fact for the Class; An order awarding declaratory relief, injunctive relief and damages, as more fully set out below; An order stating the relief claimed by the Class as follows:
a) a declaration that the RCMP engaged its liability and violated the rights of the Class Members by retaining the services of Clearview, by wilfully obtaining access to Clearview’s database, and by running searches in Clearview’s database;
b) a declaration that the RCMP cannot engage with Clearview and use its services;
c) an order enjoining the RCMP to remit to the Privacy Breach Class Members all the documents and information it obtained from Clearview with respect to them (the “Illegally Obtained Documentation and Information”);
d) an order enjoining the RCMP to destroy all copies of the Illegally Obtained Documentation and Information;
e) general pecuniary and non-pecuniary, special, punitive and/or statutory damages, including under s. 49 of the Charter of Human Rights and Freedoms, CQLR c C-12 [Quebec Charter], against the RCMP for:
i.negligence;
ii.having willfully obtained access to an inappropriate and illegitimate database;
iii. privacy breaches, including commission of the tort of intrusion upon seclusion;
iv.copyright infringement; and
v.moral rights violations;
f) damages pursuant to s. 24(1) of the Charter;
g) an order for aggregate assessment of damages owed to the Class Members;
h) an order for aggregate assessment of damages owed to the Privacy Breach Class Members;
i) an order for aggregate assessment of damages owed to the Copyright Infringement Class Members;
j) pre-judgment and post-judgment interest pursuant to ss. 36 and 37 of the Federal Courts Act, RSC 1985, ch. F-7;
k) the costs of notice and of administering the plan of distribution of the recovery in this action, plus applicable taxes; and
l) such further and other relief as counsel may advise and this honourable Court may permit;
An order approving the litigation plan attached as Appendix B to this Notice as setting out a workable method for:
a) advancing the proceeding on behalf of the Class; and
b) notifying Class Members as to how the proceeding is progressing;
An order enjoining Defendant to pay the costs related to the notification of Class Members as set out in the Litigation Plan appended hereto as Appendix B; An order following which any Class Members who wish to opt out of the Class Proceeding shall do so in writing by letter, email, or fax sent to the solicitors for Plaintiff within thirty (30) days of the issuance of the Court’s Order (the “Opt-Out Period”); An order enjoining Defendant to provide Plaintiff’s solicitors with a list of all Class Members the Defendant is capable of identifying and those Class Members’ contact information following the expiry of the Opt-Out Period; An order declaring that there shall be no costs associated with the Motion for Certification, the whole in accordance with s. 334.39 of the Rules; Such further and other relief as counsel may advise and this honourable Court may permit.
IV. General principles for certification [28] Part 5.1 of the Rules sets out the framework for establishing and managing class proceedings before this Court.
[29] During the certification stage, the Court must determine whether the five conditions of Rule 334.16(1) are satisfied, such that the action should be certified as a class proceeding (Lin v Airbnb Inc, 2019 FC 1563 at para 21 [Airbnb]; Rae v Canada (National Revenue), 2015 FC 707 at para 50 [Rae]; Paradis Honey Ltd v Canada (Attorney General), 2015 FCA 89 at para 5 [Paradis Honey FCA]). Hence, per Rule 334.16(1) the following conditions must be met:
a) the pleadings disclose a reasonable cause of action;
b) there is an identifiable class of two or more persons;
c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;
d) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and
e) there is an appropriate representative plaintiff.
[30] The test is a conjunctive one and the Court shall certify a proceeding as a class proceeding if all five conditions of the test are satisfied (Sivak v Canada, 2012 FC 271 at para 5). A plaintiff who fails to meet any of the five listed conditions will see their motion dismissed (Samson Cree Nation v Samson Cree Nation (Chief and Council), 2008 FC 1308 at para 35 [Buffalo FC], aff’d in Buffalo v Samson Cree Nation, 2010 FCA 165 at para 3 [Buffalo FCA]).
[31] As the parties indicated, and as my colleague Justice Gascon outlined in Jensen v Samsung Electronics Co Ltd, 2021 FC 1185 [Jensen FC] (aff’d in Jensen v Samsung Electronics Co Ltd, 2023 FCA 89), the certification conditions established in Rule 334.16(1) are akin to those applied by the courts in Ontario and British Columbia (Canada (Attorney General) v Jost, 2020 FCA 212 at para 23 [Jost]; Canada v John Doe, 2016 FCA 191 at para 22 [John Doe]; Buffalo FCA at para 8; Airbnb at para 23). I accept that it is thus not uncommon to see this Court and the Federal Court of Appeal refer to case law arising from these provinces in matters relating to class actions.
[32] The procedural vehicle of class actions offers three important benefits over a duplication of individual litigations: (1) it allows for improved access to justice for those who might otherwise be unable to seek vindication of their rights through the traditional litigation process; (2) it enhances judicial economy, allowing a single proceeding to decide large numbers of claims involving similar issues; and (3) it encourages behaviour modification on behalf of the ones who caused harm and deters potential defendants who might otherwise assume that minor wrongs would not result in litigation (Hollick v Toronto (City), 2001 SCC 68 at para 15 [Hollick], Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 at paras 27‑29 [Dutton]; Vivendi Canada Inc v Dell’Aniello, 2014 SCC 1 at para 1 [Vivendi]).
[33] I am mindful that it is “essential […] that courts [do] not take an overly restrictive approach to the legislation, but rather interpret [class action legislation] in a way that gives full effect to the benefits foreseen by the drafters” and to the greater overarching purposes of this specific procedural mechanism (Hollick at para 15. See also Dutton at paras 27-29; Condon v Canada, 2015 FCA 159 at para 10 [Condon]).
[34] The main purpose of a certification motion is to determine whether a class action is the appropriate procedural means for the action to proceed. As the Supreme Court of Canada noted in Hollick, the certification stage focuses on the form of the action, not on the substance and merits of the actual claim (Hollick at para 16. See also Vivendi at para 37; Infineon Technologies AG v Option consommateurs, 2013 SCC 59 at para 65 [Infineon]). It is well established that the onus on a party seeking certification is not an onerous one, and the threshold for certification has generally been described as low.
[35] However, I also keep in mind the principles Justice Gascon highlighted at paragraph 60 of his decision in Jensen FC:
That said, it is important to emphasize that, even though it is a low one, there is still a threshold to be met at the certification stage, and that certification will be denied when there is no viable cause of action or where there is an insufficient evidentiary basis for the facts on which the claims of the class members depend. While a certification motion is not a merits-based screening intended to determine the actual viability or strength of the contemplated class action, it must nonetheless operate as a “meaningful screening device” (Pro-Sys at para 103). In Pro-Sys, the SCC expressly stated that the analysis into the sufficiency of the evidence under the some-basis-in-fact standard cannot be so superficial that it would “amount to nothing more than symbolic scrutiny” of the evidence (Pro-Sys at para 103). There must be sufficient facts to satisfy the certification judge that the conditions for certification have been met “to a degree that should allow the matter to proceed on a class basis without foundering at the merits stage,” by reason of the requirements not having been met (Pro-Sys at para 104). More recently, in the context of motions for authorization brought under the Quebec class action regime and the application of the “arguable case” requirement under the Quebec legislation, the SCC repeatedly reaffirmed that the authorization process “must not be reduced to ‘a mere formality” (Oratoire at para 62; Desjardins Financial Services Firm Inc v Asselin, 2020 SCC 30 [Desjardins] at para 74).
[36] With these principles in mind, I will now examine if the conditions set out by the Rules are met.
V. Rule 334.16(1)(a): reasonable cause of action
A. Introduction [37] Ms. Doan raises the following seven categories of causes of action in her Memorandum of Fact and Law: (1) breach of section 8 of the Charter; (2) negligent violations of privacy rights under Québec law, namely the Civil Code and the Québec Charter; (3) tort of intrusion upon seclusion; (4) negligence at common law; (5) copyright infringement under the Copyright Act; (6) moral rights violations under the Copyright Act; and (7) vicarious liability of the Crown. Alternatively, should the Court require additional particulars to establish the reasonable cause of action, Ms. Doan submits that it should grant her leave to amend, per Paradis Honey FCA at paragraph 80.
[38] For what I hope provides greater clarity, I have organised the causes of action and arguments raised by Ms. Doan under the following headings: (1) breach of section 8 of the Charter; (2) Crown liability causes of actions; (3) causes of action under the Copyright Act; and (4) leave to amend.
[39] I will first outline the test I must apply when assessing whether the pleadings disclose a reasonable cause of action per Rule 334.16(1)(a) and I will subsequently assess the causes of action raised by Ms. Doan against this test.
B. Legal test: Reasonable cause of action [40] For the purposes of this first condition, set forth in Rule 334.16(1)(a), that the pleadings disclose a reasonable cause of action, the test is the same as the one applicable on a motion to strike a pleading in the context of an action (Rule 221 of the Rules). The test is whether it is “plain and obvious” that the pleadings, assuming the facts pleaded to be true, disclose no reasonable cause of action. This is an onerous test and the novelty of the claim will not, of itself, necessarily result in a claim being found to disclose no reasonable cause of action (Canada v Greenwood, 2021 FCA 186 at para 144 [Greenwood]).
[41] Alternatively, to put it differently, the plaintiff must establish that there is a reasonable prospect of success should the claim be permitted to proceed towards trial (Hollick at para 25; Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 at para 63 [Pro-Sys]; Hunt v Carey Canada Inc, [1990] 2 SCR 959 at 980; R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at paras 17, 70 [Imperial Tobacco]; John Doe at para 23). To do so, the plaintiff may rely only upon the statement of claim. Facts and arguments raised in the motion record, including documents submitted as evidence, are irrelevant to this condition (Greenwood at paras 90-93).
[42] Courts have consistently affirmed that to disclose a reasonable cause of action, a claim must show the following three elements (Bérubé v Canada, 2009 FC 43 at para 24, aff’d in Bérubé v Canada, 2010 FCA 276; Oleynik v Canada (Attorney General), 2014 FC 896 at para 5; Zbarsky v Canada, 2022 FC 195 at para 13):
a)it must allege facts that are capable of giving rise to a cause of action (the requirement of Rule 174 of the Rules);
b)it must disclose the nature of the action which is to be founded on those facts; and
c)it must indicate the relief sought, which must be of a type that the action could produce and that the Court has jurisdiction to grant.
[43] At this stage, the threshold is quite low, as the right of action must be protected (Manuge v Canada (FC), 2008 FC 624 at para 38; Canada (Royal Mounted Police) v Canada (Attorney General), 2015 FC 1372 at para 17).
[44] However, a low threshold does not mean no threshold.
[45] The Federal Court of Appeal recently articulated the test as follows in Canada (Attorney General) v Nasogaluak, 2023 FCA 61:
[18] The first certification condition, that the pleadings disclose a reasonable cause of action, is assessed on the same standard that applies on a motion to strike out a pleading. Thus, the question is whether it is plain and obvious, assuming the facts pleaded to be true (unless they are manifestly incapable of being proven), that the pleaded claims have no reasonable prospect of success: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at para. 14; Canada v. Greenwood, 2021 FCA 186 at para. 91, leave to appeal to S.C.C. refused, 39885 (March 17, 2022). A claim that has no reasonable prospect of success will not satisfy the first condition.
[19] No evidence is admissible on this issue. However, the pleading must be read generously, and as it might reasonably be amended to accommodate inadequacies attributable to drafting. Moreover, recognizing that the law is not static, the motion judge must err on the side of permitting a novel but arguable claim to proceed to trial: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paras. 19-25. This Court has described as “onerous” the burden resting on a defendant seeking to defeat a certification motion on the basis that no reasonable cause of action is pleaded: Greenwood at para. 144.
[46] The statement of claim must plead, in a concise, clear manner, material facts satisfying all the constituent elements of each alleged cause of action with sufficient particularity. The pleading must tell the defendant who, when, where, how and what gave rise to its liability.
[47] Notably, Rule 174 of the Rules requires that “[e]very pleading shall contain a concise statement of the material facts on which the party relies, but shall not include evidence by which those facts are to be proved”. The Federal Court of Appeal held that, if it were not for Rule 174, “parties would be able to make the broadest, most sweeping allegations without evidence and embark upon a fishing expedition” (Merchant Law Group v Canada Revenue Agency, 2010 FCA 184 at para 34 [Merchant]. See also Painblanc v Kastner (1994), 58 CPR (3d) 502 at para 4).
[48] There is no relaxed rule of pleading for class actions (Merchant at para 40). Hence, as the Federal Court of Appeal outlined in Mancuso v Canada (National Health and Welfare), 2015 FCA 227 at paragraphs 16 to 20 [Mancuso], it is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and relief sought; sufficient material facts is the foundation of a proper pleading. Notably, the Federal Court of Appeal added that what constitutes a material fact is determined in light of the cause of action and the damages sought to be recovered. In order for allegations to be considered as material facts – and thus assumed to be true – “they must be supported by sufficient particularization, and must not be bare assertions or conclusory legal statements based on assumptions or speculation” (Jensen FC at para 79).
[49] The Federal Court of Appeal also stated that, while the contours of what constitutes material facts are assessed by the motion judge in light of the causes of action pleaded and the damages sought, the requirement for adequate material facts to be pleaded is mandatory.
[50] Only material facts are assumed to be true. The following are not material facts (and are not assumed to be true): bare assertions; speculation; assumptions; allegations that are scandalous, frivolous or vexatious; allegations that are argumentative or inserted only for colour; legal submissions or conclusions of law. The Court does not accept as true or give weight to allegations that “are inconsistent with common sense, the documents incorporated by reference, or incontrovertible evidence proffered by both sides for the purpose of the motions” (Jensen FC at para 82, citing Das v George Weston Limited, 2017 ONSC 4129 at para 27, aff’d in Das v George Weston Limited, 2018 ONCA 1053 at para 74).
[51] Courts have confirmed, and this is particularly relevant to these proceedings, that although the statement of claim must be read as generously as possible to accommodate any deficiencies due to drafting defects, it is incumbent upon the plaintiff to clearly plead the facts underlying its claim (Pelletier v Canada, 2016 FC 1356 at para 7; Operation Dismantle v The Queen, [1985] 1 SCR 441 at 451). A plaintiff is not entitled to rely on the possibility that new facts may turn up as the case progresses; the facts pleaded are instead the firm basis upon which the possibility of success of the claim must be evaluated by the Court (Jensen FC at para 71; Imperial Tobacco at para 22).
[52] It is also important to note that the conditions for certification, including the sufficiency of the alleged facts, must be interpreted flexibly. However, the Court cannot go so far as to presume the existence of an element that is essential to the establishment of a cause of action (Jensen FC at para 76).
[53] It is with these principles in mind that I must examine the causes of action Ms. Doan raised and the material facts she pleaded in her Re-Re-Amended Statement of Claim. In essence, and as described below, I find that Ms. Doan has failed to plead material facts for the constituent elements of each cause of action or legal ground raised, and that her pleadings therefore do not disclose a reasonable cause of action.
C. Ms. Doan’s pleadings [54] In light of the principles highlighted above, it is useful to commence with a review of Ms. Doan’s pleadings, found in her Re-Re-Amended Statement of Claim. I note that, as is often the case in class proceedings, Canada chose to refrain from filing a defence prior to the disposition of the Motion for certification.
[55] Ms. Doan’s Re-Re-Amended Statement of Claim contains 62 paragraphs. It is divided in the following ten sections (1) an overview (paras 1-6), describing namely the allegation of fault committed by the RCMP (para 5); (2) the Plaintiff’s and Class Members’ claim (para 7); (3) Clearview’s operations (paras 8-19); (4) the RCMP’s involvement with Clearview and use of its services, including details about the Privacy Commissioner’s reports (paras 20-38.3); (5) a description of the Plaintiff (paras 39-45); (6) the description of the Class (paras 46-50); (7) the causes of action against the Crown, which are separated in two categories: (a) negligence, partaking in illegal activities and wilfully obtaining access to an illicit database; and (b) invasion of privacy (paras 51-58.1); (8) the remedies sought (paras 59-60); (9) the statutes Ms. Doan relies on (para 61); and (10) the location of trial (para 62).
[56] Ms. Doan’s Re-Re-Amended Statement of Claim contains a number of paragraphs referring to the two investigation reports from the Privacy Commissioner and various press releases. While counsel for Ms. Doan initially asserted, these had to be considered as material facts and they were incorporated in the Statement of Claim by reference, they later confirmed unequivocally they were not to be considered as such. I agree and will therefore not consider the reports, or the information they contain, as material facts. The Court cannot incorporate reports by reference, and legal conclusions in the reports are not material facts (Jensen FC at para 82; Bigeagle v Canada, 2021 FC 504 at paras 46-47 [Bigeagle FC] aff’d in Bigeagle v Canada, 2023 FCA 128 at paras 44, 46 [Bigeagle FCA]). The Court cannot either “fill in the gaps” of the Statement of Claim with the evidence, as suggested by Ms. Doan at the hearing, as no evidence is examined at this stage.
[57] I note, as Canada did, that very few facts are alleged in Ms. Doan’s Re-Re-Amended Statement of Claim and a number do not even concern the RCMP, but concern Clearview’s operations or activities. What can generally relate to the RCMP are:
· 5. The Royal Canadian Mounted Police (the “RCMP”), as agent of the federal Crown, became a client of Clearview. By so doing, the RCMP wilfully obtained access to and used an illicit database.
· 20. […] the RCMP eagerly partook in these illegal activities by becoming a client of Clearview, by wilfully obtaining access to its database and by using its services.
· 35. As Canada's national law enforcement agency, the RCMP operates all over Canada with national, federal, provincial, and municipal policing mandates. By becoming a paying client of Clearview, by wilfully obtaining access to Clearview’s database and by using its services, the RCMP was partaking in illegal activities.
· 38.3. It is clear that the RCMP repeatedly misled the OPCC, and thus by extension the Canadian public, over the course of the RCMP-Clearview Investigation.
· 45. Irrespective of whether the RCMP actually used Clearview’s services with respect to Ms. Doan or to the Doan Photographs, the fact of being a Clearview client and having wilfully obtained access to services the provision of which involves the invasion of privacy of residents and citizens of Canada and the violation of their intellectual property rights on a systematic basis, engages RCMP’s liability. [my emphasis]
[58] Notably as well is the fact that Ms. Doan pleaded no material fact that the RCMP looked for or saw (let alone copied or kept) any information that relates to her. In fact, as outlined above, Ms. Doan actually alleges that it does not matter if the RCMP used Clearview’s services with respect to her or to the photographs she has taken and she thus does not allege that the RCMP actually saw, or copied, even a single photograph of her or taken by her in Clearview’s database. Her case is premised on the notion that this fact does not matter.
[59] Furthermore, Ms. Doan’s description of the database query process appears speculative, as she herself has never used Clearview’s database, and is contradicted by clear evidence submitted by both parties (Jensen FC at paras 82, 86). In particular, her Re-Re-Amended Statement of Claim at paragraph 16(c) states that “Clearview instantly generates and provides its client with a file containing virtually all the photographs of the individual appearing in the Query Photo available or formerly available on the Internet, along with all the information accompanying these photographs, such as, often, the individual’s name, location, circle of friends, family, etc.” However, the incontrovertible evidence proffered by both sides shows that the search results into Clearview only generates head shots and links to the public internet page where the image was found.
[60] The Re-Re-Amended Statement of Claim further does not distinguish between the different causes of action; this added to the complexity of the analysis.
D. Breach of section 8 of the Charter
(1) Parties’ position [61] Ms. Doan initially argued, in her Memorandum of Fact and Law, that (1) the Privacy Breach Class had reasonable expectation of