Doan v. Canada (Attorney General)

Doan v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2023-03-17
Neutral citation
2023 FC 236
File numbers
T-1410-21
Decision Content
Date: 20230317
Docket: T-1410-21
Citation: 2023 FC 236
Ottawa, Ontario, March 17, 2023
PRESENT: Madam Justice St-Louis
BETWEEN:
HA VI DOAN
Applicant
and
CLEARVIEW AL INC.
Respondent
and
ATTORNEY GENERAL OF CANADA
Intervener
ORDER AND REASONS
I. Introduction [1] Ms. Ha Vi Doan brings a motion for certification of the proceeding as a class proceeding [Motion for certification] pursuant to Rules 334.15 and following of the Federal Courts Rules, SOR/98-106 [the Rules]. Ms. Doan’s originating document is a Notice of Application filed to the Court under subsection 14(1) of the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 [PIPEDA], section 26 of the Federal Courts Act, RSC 1985, c F-7, and Rules 301 and 334.12 of the Rules.
[2] Ms. Doan applied to the Court after having been notified by the Office of the Privacy Commissioner of Canada [the Privacy Commissioner] under subsection 12.2(3) of PIPEDA that the investigation of the complaint she filed in file no. PIPEDA-041902 had been discontinued [the Complaint]. The Privacy Commissioner then indicated having decided to exercise his discretion to discontinue the investigation pursuant to paragraph 12.2(1)(e) of PIPEDA, as the matter had already been the subject of a report by the Privacy Commissioner.
[3] In her Re-Amended Notice of Application, Ms. Doan preliminary indicates that she will rely upon PIPEDA, the Federal Courts Act, and the Rules, and subsequently adds that she will also rely on the following provincial statutes: the Charter of Human Rights and Freedoms, CQLR c C-12 (Québec); the Personal Information Protection Act, SBC 2003, c 63 and its Regulations (British Columbia); the Personal Information Protection Act, SA 2003, c P-6.5 and its Regulations (Alberta); the Act respecting the protection of personal information in the private sector, CQLR c P-39.1 (Québec); the Act to establish a legal framework for Information technology, CQLR c C-1.1 (Québec); and the Civil Code of Québec, CQLR c CCQ-1991 (Québec). Ms. Doan describes the Class as:
All natural persons, who are either residents or citizens of Canada, whose faces appear in the photographs collected by Clearview Inc. (the “Collected Photographs”) (the “Class” or the “Class Members”); and
All natural persons, residing in Québec, whose faces appear in the Collected Photographs (the “Quebec Class” or the “Quebec Class Members”).
[4] In support of her Motion for certification, Ms. Doan submits that it is not plain and obvious that Part 1 of PIPEDA is invalid and she also submits that the conditions set out in Rule 334.16(1) are met as (1) it is not plain and obvious that the pleadings do not disclose reasonable causes of action in regards to privacy violations, tort of intrusion upon seclusion, and violations of privacy rights under Québec law (Rule 334.16(1)(a)); (2) in any event, should the Court require additional particulars, it should grant Ms. Doan leave to amend; and (3) she has shown there is some basis in fact supporting each of the conditions set out in of Rule 334.16 (1)(b) to (e), and the conditions are thus met.
[5] Clearview Al Inc. [Clearview] opposes the Motion for certification. It responds that (1) Part 1 of PIPEDA is ultra vires of Parliament and invalid, and served the proper Notice of Constitutional Question under section 57 of the Federal Courts Act; (2) even if Part 1 of PIPEDA were valid, the necessary conditions for certification are not met as (a) there exists one reasonable cause of action, as Ms. Doan herself satisfies the requirement set out in section 14 of PIPEDA, but the pleadings disclose no other reasonable cause of action; (b) the Court should not grant Ms. Doan the open-ended leave to amend she seeks; (c) Ms. Doan has not shown any basis in fact that there is an identifiable class of two or more persons, per the condition set out at Rule 334.16(1)(b); and (d) Ms. Doan has not shown any basis in fact that the class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact per Rule 334.16(1)(d).
[6] The Attorney General of Canada [the AGC] responded to Clearview’s Notice of Constitutional Question and he participated in the Motion for certification proceedings. He submits that (1) the starting point is the presumption of validity of PIPEDA; (2) any constitutional conclusion is ultra petita; (3) the certification stage of a class proceeding is not an appropriate forum for this division of powers analysis; and (4) courts should not decide constitutional questions that are not necessary to resolve the case. At the hearing, Clearview agreed with the AGC that the constitutional issue should be debated at the merit stage, if the Motion for certification is granted.
[7] For the reasons outlined below, I will dismiss Ms. Doan’s Motion for certification because at least two of the conjunctive conditions set out at Rule 334.16(1) are not met. Hence, after careful consideration, I find that (1) the pleadings disclose one reasonable cause of action under PIPEDA as the Class representative, Ms. Doan, meets the requirement set out in section 14 of PIPEDA; (2) the pleadings disclose no other reasonable cause of action - as all the other causes of action raised are clearly bereft of any chances of success (Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 [JP Morgan]); (3) Ms. Doan has not shown she is entitled to the open-ended leave to amend she seeks, or that it is available to her; (4) Ms. Doan has not shown some basis in fact that there is an identifiable class of two or more persons, per the condition set out in Rule 334.16(1)(b), while the modification she proposes is time barred by PIPEDA; and (5) Ms. Doan has not shown some basis in fact that a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact, per Rule 334.16(1)(d).
[8] Given my conclusion on the Motion for certification, the constitutional question becomes moot and there is no need to address it (State Farm Mutual Automobile Insurance Company v Privacy Commissioner of Canada, 2010 FC 736 at para 119 [State Farm]).
II. Context [9] Clearview is a United-States based company that provides a facial recognition software to government entities - overwhelmingly law enforcement and national security agencies.
[10] Ms. Doan is a citizen of Canada and resides in Montréal, Québec. She is a photograph and 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 online photos she has taken of them.
[11] In January and February 2020, public reports indicated that Clearview was collecting digital images from a variety of different public websites, including Facebook, YouTube, Instagram, etc. On February 21, 2020, the 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.
[12] On February 2, 2021, the Offices issued their report 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 mentioned above and they issued recommendations.
[13] The privacy commissioners of British Columbia and Alberta issued orders to comply following Clearview’s non-compliance with their recommendations, which Clearview has challenged. No decision has yet been rendered on either challenge and the reports cannot therefore be considered as final reports.
[14] On February 28, 2020, the Privacy Commissioner initiated an investigation into the RCMP’s use of Facial recognition technology in Canada, and 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”.
[15] In July 2020, Clearview ceased all activities in Canada.
[16] On July 7, 2020, Ms. Doan instituted an action against Clearview in which she proposed to bring a class action on behalf of two different subclasses:
1. All natural persons, who are either residents or citizens of Canada, whose faces appear in the Collected Photographs [the Privacy Breach Class];
2. All natural or legal persons holding copyright and moral rights with respect to the Collected Photographs [the Copyright Infringement Class].
[17] Per the Privacy Breach Class, Ms. Doan alleged that Clearview collected, copied, stored, used, and in some cases, disclosed publicly available photographs found on the internet without her or the proposed Privacy Breach Class members’ knowledge or consent (T-713-20 file). Ms. Doan alleged that these actions by Clearview breached a number of federal and provincial statutes, including PIPEDA and the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[18] Clearview brought a motion for an order pursuant to Rule 221(1)(a) of the Rules to strike portions of the pleadings contained in the proposed class proceeding instituted by Ms. Doan. Clearview’s motion to strike concerned solely the breach of privacy portion of the proposed class proceeding. In its motion to strike, Clearview alleged that (1) Ms. Doan did not have standing to bring the action in regards to the Privacy Breach Class before the Federal Court, pursuant to sections 14 and 15 of the PIPEDA, as only a complainant or the Privacy Commissioner can seek remedies for an alleged breach, and no other federal law grants the Court the necessary jurisdiction to do so, and Ms. Doan was not a complainant; (2) at the time the pleadings were filed, the Privacy Commissioner had not issued the Investigation Report; and (3) the Court had no jurisdiction to hear claims based on alleged breaches of provincial statutes.
[19] On May 6, 2021, I granted Clearview’s motion to strike in the T-713-20 file [the Order]. I then considered, inter alia, that Ms. Doan had not filed a complaint under section 11 of PIPEDA, and that the Federal Court of Appeal had already stated that (1) the express statutory language of PIPEDA indicated that the recourse of section 14 is open to a “complainant”; (2) that a complainant is an individual who has filed a complaint with the Privacy Commissioner; and (3) per subsection 14(1) of PIPEDA, only a complainant with respect to whose complaint a report was prepared by the Privacy Commissioner can apply to the Court (Englander v Telus Communications Inc, 2004 FCA 387 at para 50 [Englander]).
[20] In my Order, I had also noted that the Federal Court had confirmed the recourse is open to individuals who have filed complaints in accordance with subsection 11(1) of PIPEDA, failing which the Court has no jurisdiction (Turner v Telus Communications Inc, 2005 FC 1601 at paras 34 and following [Turner]; Wilson v Telus Communications Inc, 2019 FC 276 at para 17 [Wilson]). I concluded it was plain and obvious that Ms. Doan had no standing to bring an application under section 14 of PIPEDA and I consequently struck the related portions of the pleadings, i.e., the entire cause of action based on the allegation of privacy breaches i.e., the Privacy Breach Class.
[21] Ms. Doan did not appeal this Order striking out her pleadings of the Privacy Breach Class in the T-713-20 file.
[22] On or around June 28, 2021, Ms. Doan filed her Complaint with the Privacy Commissioner against Clearview under section 11 of PIPEDA. In her Complaint, Ms. Doan asserted, inter alia, that in the course of providing its facial recognition service, Clearview collected, used, retained and disclosed her personal information in the form of biometric data and photographs without her consent and without an appropriate or legitimate purpose and thus violated her right to privacy under PIPEDA and other privacy legislations.
[23] In her Complaint, Ms. Doan asserted the Privacy Commissioner’s February 2021 Investigation Report and she indicated that:
If the OPCC initiates a complaint against Clearview in this matter (s. 11(2) of the PIPEDA), Ms. Doan will have standing before the Federal Court pursuant to ss. 14-15 of the PIPEDA, even if the OPCC discontinues its investigation on the grounds that “the matter has already been the subject of a report by the Commissioner” (s. 12.2(1)(e) of the PIPEDA) and so advises Ms. Doan (s. 12.2(3) of the PIPEDA).
[24] On August 26, 2021, the Privacy Commissioner wrote to Ms. Doan. He indicated having accepted Ms. Doan’s Complaint on July 5, 2021 and he outlined what Ms. Doan had asserted in her Complaint. The Privacy Commissioner determined that the activities and PIPEDA issues Ms. Doan had referred to in her Complaint were previously investigated and were the subject of a published report of findings issued on February 2, 2021. For this reason, the Privacy Commissioner indicated that he decided to exercise his discretion pursuant to paragraph 12.2(1)(e) of PIPEDA to discontinue the investigation on the grounds that Ms. Doan’s Complaint had already been the subject of the Investigation Report by the Privacy Commissioner.
[25] On September 15, 2021, Ms. Doan filed her Notice of Application. On November 18, 2021, Ms. Doan filed her Motion for certification and for the appointment of Ms. Doan as Class representative. She provided proposed common questions of law and/or fact (Appendix A), a litigation plan for the proceeding (Appendix B), and a summary of agreements respecting fees and disbursements between the Application and her solicitors of record (Appendix C).
[26] On December 1, 2021, Clearview sent a Notice of Constitutional Question to the AGC and to the Attorney General of each provinces and territories. In its Notice, Clearview indicated its intend to question the constitutional validity of Part I of the PIPEDA and, on a subsidiary basis, of paragraphs 7(1)(d), (2)(c.1), (3)(h.1) of PIPEDA and of subsection 1(e) of the Regulations Specifying Publicly Available Information, SOR/2001-7.
[27] On July 15, 2022, Ms. Doan filed an amended Motion Record, which included an Amended Notice of Motion and (1) an affidavit of Ms. Doan sworn on November 18, 2021, introducing 12 exhibits; (2) an affidavit of Ms. Doan sworn on March 10, 2022, introducing nine exhibits; (3) an affidavit of Ms. Emy Bergevin sworn on March 10, 2022, introducing 27 exhibits; and (4) a transcript of Clearview’s General Counsel, Mr. Jack Mulcaire’s cross-examination held on May 2, 2022, with six exhibits attached.
[28] On August 3, 2022, Ms. Doan amended her Notice of Application unopposed.
[29] On September 16, 2022, Clearview filed its Motion Record in Response. In support of its Motion Record, Clearview submitted (1) an affidavit of Mr. Mulcaire sworn on February 25, 2022. Mr. Mulcaire describes the material facts on which Clearview intends to rely on at the hearing and introduced three exhibits; (2) an affidavit of Ms. Narod Migdesyan, paralegal at IMK LLP, sworn on February 25, 2022, introducing 13 exhibits; (3) a transcript of Ms. Doan’s cross-examination held on April 25, 2022, with two exhibits attached.
[30] On September 26, 2022, the AGC filed a Notice of intervention in relation to the Notice of Constitutional Question.
[31] On October 24, 2022, Ms. Doan again amended her Notice of Application unopposed. In her Re-Amended Notice of Application, she added a subclass for Québec residents. As I stated earlier, the proposed class is defined as follows:
All natural persons, who are either residents or citizens of Canada, whose faces appear in the photographs collected by Clearview Inc. (the “Collected Photographs”) (the “Class” or the “Class Members”); and
All natural persons, residing in Québec, whose faces appear in the Collected Photographs (the “Quebec Class” or the “Quebec Class Members”).
[32] In her Re-Amended Notice of Application, 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 application as a class proceeding and appointing her as the representative applicant under the Rules;
b. a declaration that Clearview has illegally collected, copied, stored, used and disclosed personal information of the Class Members in violation of their privacy rights;
c. a declaration that Clearview violated quasi-constitutional rights of the Class Members;
i. an order enjoining Clearview to remove from its database and to destroy all copies of all personal information, including any data created by Clearview, of the Class Members;
ii. cease collecting, retaining, using, selling and disclosing photographs and related data of the Class Members;
iii. prevent the photographs and related data of the Class Members from appearing in Clearview’s search results;
iv. not market or provide its services in Canada;
d. general pecuniary and non-pecuniary, punitive and statutory damages for Clearview’s privacy breaches and invasions of privacy (including the commission of the tort of intrusion upon seclusion);
e. damages, including punitive damages, under the Charter of Human Rights and Freedoms, CQLR c C-12 (the “Québec Charter”);
f. an order for aggregate assessment of damages owed to the Class Members;
g. pre-judgment and post-judgment interest pursuant to sections 36 and 37 of the FCA;
h. the costs of notice and of administering the plan of distribution of the recovery in this application, plus applicable taxes; and
i. such further and other relief as this Honourable Court deems just.
III. Order sought on this Motion for certification [33] In her Motion for certification, Ms. Doan seeks the following orders from the Court:
1. 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 Federal Courts Rules, SOR/98-106 (the “Rules”);
2. An order defining the class (the “Class” or “Class Members”) as follows:
a. all natural persons, who are either residents or citizens of Canada, whose faces appear in the photographs collected by Clearview (the “Collected Photographs”); and
b. all natural persons, residing in Québec, whose faces appear in the Collected Photographs (the “Quebec Class” or the “Quebec Class Members”);
3. An order appointing the Applicant as the representative applicant of the Class (the “Representative Applicant”);
4. An order stating the nature of the claims made on behalf of the Class against the Respondent as follows:
a. Claims in privacy breaches and invasions of privacy (including commission of the tort of inclusion upon seclusion) against Clearview in connection with Clearview’s collection, retention, use, sale, and subsequent disclosure of the Collected Photographs and related personal information in violation of the Class Members’ rights;
b. Claims in infringement of quasi-constitutional rights against Clearview in connection with Clearview’s collection, retention, use, sale, and subsequent disclosure of the Collected Photographs and related personal information in violation of the Québec Class Members’ rights;
5. 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;
6. An order awarding declaratory relief, injunctive relief, and damages, as more fully set out below;
7. An order stating the relief claimed by the Class as follows:
a. a declaration that Clearview has illegally collected, retained, used, sold and disclosed personal information of the Class Members in violation of their privacy rights;
b. a declaration that Clearview violated quasi-constitutional rights of the Québec Class Members;
c. an order enjoining Clearview to:
i. remove from its database and to destroy all copies of all personal information, including any data created by Clearview, of the Class Members;
ii. cease collecting, retaining, using, selling and disclosing photographs and related data of the Class Members;
iii. prevent the photographs and related data of the Class Members from appearing in Clearview’s search results;
iv. not market or provide its services in Canada;
d. general pecuniary and non-pecuniary and statutory damages for Clearview’s privacy breaches and invasion of privacy (including the commission of the tort of intrusion upon seclusion);
e. damages, including punitive damages, under the Charter of Human Rights and Freedoms, CQLR c. C-12 (the “Quebec Charter”);
f. an order for aggregate assessment of damages owed to the Class Members;
g. pre-judgment and post-judgment interest pursuant to ss. 36 and 37 of the Federal Courts Act, RSC 1985, c. F-7 (the “FCA”);
h. the costs of notice and of administering the plan of distribution of the recovery in this application, plus applicable taxes; and
i. such further and other relief as counsel may advise and this honourable Court may permit;
8. An order approving the litigation plan (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;
9. An order enjoining Clearview to pay the costs related to the notification of Class Members as set out in the Litigation Plan appended hereto as Appendix B;
10. 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 Applicant within thirty (30) days of the issuance of the Court’s Order (the “Opt-Out Period”);
11. An order enjoining the Respondent to provide the Applicant’s solicitors with a list of all Class Members the Respondent is capable of identifying and those Class Members’ contact information following the expiry of the Opt-Out Period;
12. 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;
13. Such further and other relief as counsel may advise and this honourable Court may permit.
IV. The issue on this Motion for certification [34] The question at issue is whether this Court should certify the proposed class proceeding. This entails determining if Ms. Doan satisfied the following conditions per Rule 334.16(1)(a) to (e) of the Rules: (1) whether the pleadings disclose a reasonable cause of action; and (2) whether Ms. Doan has established some basis in fact for all other conditions for certification i.e., (i) there is an identifiable class of two or more persons; (ii) the claims of the Class Members raise common questions of law or fact; (iii) a class proceeding is the preferable procedure for the just and efficient resolution of those common questions; and (iv) there is an appropriate representative applicant (Bruyea v Canada, 2022 FC 1409 at para 89 [Bruyea]).
[35] The Court shall grant certification if Ms. Doan meets all five conditions of the test. Conversely, if Ms. Doan fails to meet any of the five listed conditions, the Motion for certification must fail (Lin v Airbnb, Inc, 2019 FC 1563 at para 21 [Airbnb]; Buffalo v Samson Cree Nation, 2008 FC 1308 at para 16 [Buffalo]).
V. General rules of certification [36] The Rules pertaining to class proceedings are provided in Part 5.1 of the Rules.
[37] A class proceeding 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 (Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 at paras 27-29).
[38] An overly restrictive approach must be avoided when applying class proceeding certification legislation to ensure that the advantages can be fully realized (Buffalo at para 29). At the certification stage, this Court’s task is to determine whether a class proceeding is an appropriate procedural vehicle (Pro‑Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 at para 99 [Pro-Sys]). In other words, “the certification stage is decidedly not meant to be a test of the merits of the action” (Hollick v Toronto (City), 2001 SCC 68 at para 16 [Hollick]).
[39] However, I also keep in mind the principles Justice Gascon highlighted at paragraph 60 of his decision in Jensen v Samsung Electronics Co. Ltd, 2021 FC 1185:
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).
VI. Rule 334.16(1)(a): Reasonable cause of action A. Introduction [40] In her Memorandum of fact and law, Ms. Doan submits that her pleadings disclose reasonable causes of action. She presents the following three categories of causes of action: (1) privacy violations under PIPEDA, and under the Personal Information Acts of British Columbia and of Alberta; (2) tort of intrusion upon seclusion; and (3) violations of privacy rights under Québec law, namely the four pieces of legislations cited earlier. Alternatively, should the Court require additional particulars, Ms. Doan submits that the Court should grant her leave to amend, citing Paradis Honey Ltd v Canada, 2015 FCA 89 at para 80 [Paradis Honey].
[41] Considering the applicable law and to avoid repetitiveness, I will examine the arguments raised by Ms. Doan under the following headings: (1) privacy violations under PIPEDA; (2) causes of action raised under various provincial laws; (3) cause of action raised under the common law tort of intrusion upon seclusion; and (4) leave to amend.
B. Applicable test [42] The first certification condition set out in Rule 334.16(1)(a) of the Rules requires that the pleadings disclose a reasonable cause of action. This condition is assessed on the same threshold that applies to a motion to strike or dismiss (Pro-Sys at para 63).
[43] The motion to strike pleadings in the context of actions - with or without leave - is provided for at Rule 221 of the Rules. A pleading will be struck if it is it is plain and obvious that a claim does not exist or has no reasonable chance of success (Airbnb at para 70).
[44] The Rules do not contemplate a motion to strike in the context of applications. As Justice Stratas stated in JP Morgan at paragraph 48: “[…] the Federal Courts’ jurisdiction to strike a notice of application is founded not in the Rules but in the Courts’ plenary jurisdiction to restrain the misuse or abuse of courts’ processes: David Bull, supra at page 600; Canada (National Revenue) v RBC Life Insurance Company, 2013 FCA 50”. Justice Stratas confirmed this is a high threshold and that: “The Court will strike a notice of application for judicial review only where it is ‘so clearly improper as to be bereft of any possibility of success’: David Bull Laboratories (Canada) Inc v Pharmacia Inc, [1995] 1 FC 588 at page 600 (CA). There must be a ‘show stopper’ or a ‘knockout punch’ – an obvious, fatal flaw striking at the root of this Court’s power to entertain the application: JP Morgan at para 47; Rahman v Public Service Labour Relations Board, 2013 FCA 117 at para 7; Donaldson v Western Grain Storage By-Products, 2012 FCA 286 at para 6; cf. Hunt v Carey Canada Inc, [1990] 2 SCR 959”.
[45] Although the Federal Court of Appeal seemingly hinted, in JP Morgan, that the threshold was higher in a motion to strike a notice of application as compared to in a motion to strike pleadings in an action per Rule 221 of the Rules, it later confirmed that the test was actually the same in both instances (Wenham v Canada (Attorney General), 2018 FCA 199 at paras 33-34 [Wenham]). However, the words used to express the test applicable in each instance are different.
[46] As this proposed class proceeding is introduced by way of an application, and not by way of an action, I will use the words and the test outlined by the Federal Court of Appeal in JP Morgan, hence whether it is so clearly improper as to be bereft of any possibility of success (see also Soprema Inc v Canada (Attorney General), 2021 FC 732 at para 26; Soprema Inc c Canada (Procureur général), 2022 CAF 103 at para 10; Kenney v Canada (Attorney General), 2016 FC 367 at para 19).
[47] In assessing the reasonable cause of action condition, no evidence may be considered and the analysis is limited to the pleadings (Airbnb at para 70; R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 23; Condon v Canada, 2015 FCA 159 at para 13 Condon]). Otherwise, the hearing of the motion could turn into a full hearing on the merits (Condon at para 13). The Court must thus assume that the material facts contained in the Re-Amended Notice of Application are true.
C. Privacy violations allegations under PIPEDA (1) Cause of action under PIPEDA based on Ms. Doan’s status as the Class representative [48] Section 14 of PIPEDA provides that:
14(1) A complainant may, after receiving the Commissioner’s report or being notified under subsection 12.2(3) that the investigation of the complaint has been discontinued, apply to the Court for a hearing in respect of any matter in respect of which the complaint was made, or that is referred to in the Commissioner’s report, and that is referred to in clause 4.1.3, 4.2, 4.3.3, 4.4, 4.6, 4.7 or 4.8 of Schedule 1, in clause 4.3, 4.5 or 4.9 of that Schedule as modified or clarified by Division 1 or 1.1, in subsection 5(3) or 8(6) or (7), in section 10 or in Division 1.1.
(2) A complainant shall make an application within one year after the report or notification is sent or within any longer period that the Court may, either before or after the expiry of that year, allow.
(3) For greater certainty, subsections (1) and (2) apply in the same manner to complaints referred to in subsection 11(2) as to complaints referred to in subsection 11(1).
[49] The parties confirmed, and I agree, that the condition set out at Rule 334.16(1)(a) is satisfied as Ms. Doan herself has established a reasonable cause of action for the purpose of the certification. Ms. Doan established that she satisfies the requirement of subsection 14(1) of PIPEDA and that she may thus apply to the Court for a hearing. Per the language of the statute, Ms. Doan is a complainant and she has been notified under subsection 12.2(3) of PIPEDA that the investigation of the Complaint has been discontinued.
[50] Since Ms. Doan herself has established a reasonable cause of action for the purpose of the certification and as she is the proposed Class representative, a reasonable cause of action has thus been established. Under Rule 334.16(1)(a), the reasonable cause of action condition is satisfied if the representative applicant has a reasonable cause of action against the respondent (Darmar Farms Inc v Syngenta Canada Inc, 2019 ONCA 789 at paras 35-38; Taylor v Canada (Attorney General), 2012 ONCA 479 at para 21 [Taylor]).
(2) Cause of action under PIPEDA in regards to the other Class Members [51] It is clear from the evidence, and Ms. Doan does not assert otherwise, that she is the only Class Member who is a complainant under PIPEDA and who therefore meets the requirements of subsection 14(1) of PIPEDA; there is no evidence that any other member of the proposed Class is a complainant under PIPEDA. I note in passing that whether or not a class action proceeding could be brought under PIPEDA for a class of complainants is not at play in these proceedings.
[52] Ms. Doan first addresses the issue of the other members of the Class in her Reply Memorandum. She submits that it is not plain and obvious that a class proceeding under PIPEDA has no chances of success, despite the fact that Ms. Doan alone satisfies section 14 of PIPEDA, given that it is a novel claim and given the decision of Haikola v The Personal Insurance Company, 2019 ONSC 5982 [Haikola]. In Haikola, the defendants argued that the court did not have jurisdiction, since the statute only provided for individual actions. As the matter settled prior to the certification hearing, this question remained unresolved. Ms. Doan points out, however, that the Superior Court of Ontario commented, at paragraph 77, on the idea that an independent right of action may ground a class proceeding even without an express reference to this procedural vehicle in the statute creating the right of action:
[…] There is uncertainty as to whether a class action can be brought in Federal Court. Section 14 of PIPEDA requires that a complainant alleging a privacy breach must obtain a report from the Privacy Commissioner prior to commencing an action for damages in Federal Court. PIPEDA does not specifically address whether a complainant who has obtained a report from the Privacy Commissioner may avail himself or herself of the class procedure in the Federal Courts Rules if he or she has obtained a report demonstrating a systemic privacy breach. The Defendants vehemently disputed (and continue to dispute) the Federal Court’s ability to certify Haikola’s claim as a class proceeding under section 14 of PIPEDA;
[53] Ms. Doan argues that, in the present case, those comments made from the Superior Court resonate loudly, given that the Class Members “obtained a report demonstrating a systemic privacy breach” towards Canadians (Investigation Report, Exhibit P-5, at para 89).
[54] Moreover, Ms. Doan submits that my Order of May 6, 2021 is irrelevant since the situation in this matter is different. She adds that in the T-713-20 file, I issued the dismissal Order given that: “at the time the pleadings were filed, the Privacy Commissioner had not issued a report,” Ms. Doan had “not amended her Statement of Claim” otherwise and she did not plead that “she filed a complaint under section 11 of the PIPEDA at any time”. She contends that the situation here is different due to the existence of the Investigation Report, of the Complaint and of the pleadings which allege mass privacy breaches under PIPEDA for all Class Members. It is thus her opinion that the possibility to institute a class proceeding based on a report from the Privacy Commissioner concluding to systemic breaches is the only interpretation which effectively promotes the goals of PIPEDA.
[55] Moreover, Ms. Doan asserts that the case law relied on by this Court in the dismissal Order is neither binding nor persuasive as concerns the present case, given that:
· In Wilson at paras 25–26, there was no evidence of any complaint nor any investigation pursuant to PIPEDA;
· In Turner at paras 34–38, this Court was asked to adjudicate whether a labour union could be party to or act in the complaint proceedings initiated by four of its members, and importantly, the Court was not seized of any alleged systemic breaches;
· In Englander at paras 49–52, the Federal Court of Appeal’s comments that “it flows from subsection 14(1) that only a complainant with respect to whose complaint a report was prepared by the Commissioner can apply to the Court,” were made in a context that the Court qualified to be “exceptional” circumstances, e.g., that of a complainant who had no personal interest in the complaint. That is not the present case. Moreover, the Court did not, and did not purport to, enumerate all ways in which an individual could have standing pursuant to PIPEDA.
[56] I disagree. In 2010, subsection 14(1) of PIPEDA was amended to add the reference to the fact that the complainant may, after “[…] being notified under subsection 12.2(3) that the investigation of the complaint has been discontinued, apply to the Court to reflect the addition of paragraph 12.2 (1)(e)”. Contrary to Ms. Doan’s argument, I am satisfied this amendment did not affect the principles set out by the Federal Court of Appeal in Englander and that I am still bound by its teachings. Moreover, in Wilson, after the adoption of the amendment, the Federal Court has confirmed section 14 pertains to the Court’s jurisdiction.
[57] At the hearing, counsel submitted that as long as Ms. Doan herself meets the condition for a reasonable cause of action under PIPEDA, she can bring in the class proceeding on behalf of all the people identified in the Investigation Report. In other words, she asserts that the steps taken by the representative applicant under sections 11 to 14 of the PIPEDA act as an umbrella to cover the other Class Members. It is her opinion that these statutory procedural steps, necessary on an individual basis, become waved in a class proceeding certification context and that the other Class Members benefit from the procedural steps taken by the representative applicant. Ms. Doan relies on Canadian Imperial Bank of Commerce v Green, 2015 SCC 60 [CIBC v Green]. In her view, this issue should therefore be treated within the reasonable cause of action assessment.
[58] Ms. Doan thus argued that the requirement set out by PIPEDA is a procedural one and that section 14 of PIPEDA serves to regulate the exercise of the right not to create it. At the hearing, she extensively relied on CIBC v Green for the proposition that the process of filing a complaint under the PIPEDA is a procedural matter, comparable to the leave requirement under subsection 138.8 (1) of the Ontario Securities Act, RSO 1990, c S 5 [OSA].
[59] I disagree. As I indicated in my Order issued May 6, 2021, the Federal Court confirmed that the recourse under PIPEDA is open to individuals who have filed complaints in accordance with subsection 11(1) of PIPEDA, failing which the Court has no jurisdiction (Turner at paras 34 and following; Wilson). Again, Ms. Doan did not appeal this Order.
[60] The requirements set forth in section 14 of PIPEDA are not procedural - they create substantive rights and they must be met for the Court to have jurisdiction. Under PIPE