Background
Cadillac Fairview conducted an eight-week pilot project in 2018 using cameras and video-analytics software installed in shopping-mall directories. The software detected faces, converted each image into a string of 128 numbers, and generated records containing information such as time, location, estimated age, gender probabilities, and an embedding number. Facial images were not retained, and the respondents did not receive or use the resulting data.
Joshua Cleaver and Curtis Kieres alleged that the system captured mall visitors’ images and converted them into biometric data without consent, breaching privacy rights in several provinces. A certification judge refused to certify their proposed multi-jurisdictional class action because they had not shown some basis in fact for an identifiable class, common issues, or a finding that a class proceeding was the preferable procedure. The plaintiffs appealed several evidentiary and certification rulings but did not appeal the judge’s separate conclusion on preferable procedure.
The Court’s Holding
The Court of Appeal dismissed the appeal. It agreed that the record provided no basis in fact for the essential proposition that the respondents recorded facial images or created biometric or personal information from them. The certification judge was therefore entitled to find that the statutory certification requirements had not been met.
The Court also held that the failure to challenge the preferable-procedure ruling was fatal. Because all five requirements under British Columbia’s Class Proceedings Act are conjunctive, the unchallenged finding that a class proceeding was not preferable independently precluded certification. The Court described the certification judge’s reasons on judicial economy, proportionality, absence of demonstrable harm, and lack of systemic or social benefit as sound.
Key Takeaways
- A proposed class representative must provide some basis in fact for each certification requirement other than whether the pleadings disclose a cause of action.
- Certification cannot succeed when the evidence does not support the central factual proposition underlying the proposed common issues and class definition.
- Because the certification requirements are conjunctive, failing to appeal an adverse ruling on preferable procedure can be fatal even if other alleged errors are challenged.
Why It Matters
The decision underscores that the low evidentiary threshold at certification still requires evidence connecting the proposed class and common issues to the alleged conduct. Findings in a privacy-regulator’s report, when not admitted for their truth, cannot by themselves supply that evidentiary foundation.
It also highlights an appellate strategy risk: every independently dispositive certification ruling must be challenged. An appellate court cannot order certification while an unappealed finding that a mandatory statutory requirement was not satisfied remains in place.