Evidence, An Elementary Principle At The Authorization Stage Of A Class Action

• Published date: 02 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Technology, Class Actions, New Technology
• Law Firm: McCarthy Tétrault LLP
• Author: TechLex Blog, Karine Joizil, Maude St-Georges and Bianca Annie Marcelin

The widespread belief of our Quebec jurisdiction in class actions reflects the image of a paradise for any plaintiff at the authorization stage. InHomsy v.Google2022 QCCS 722, the Superior Court makes an important clarification regarding this issue. While it is true that the Supreme¹Court's jurisprudence has reiterated the low threshold in order to institute a class action, this recent decision reiterates that the authorization stage is not a law-breaking step. Evidence remains central in determining whether the plaintiff has an arguable case.

Facts

The plaintiff alleges that Google LLC (hereinafter "Google") has performed, since October 2015, through Google Photos, the extraction, the collection, the retention and the use of the facial biometric data of Québec residents prior giving sufficient notice, receiving an informed consent these residents and publishing policies for the retention of biometric data.

In support of his claim, the plaintiff invokes numerous sections, including the ones relating to the protection of the right to privacy and the right to inviolability under theCharter of Human Rights and Freedomsand theCivil Code of Quebec. The plaintiff also alleges several breaches of the protection of private information under theAct Respecting the Protection of Personal Information in the Private Sector. Finally, the plaintiff refers to the sections dealing with misleading representations under theConsumer Protection Act.

The plaintiff sues Google for non-pecuniary damages in order to receive compensation for the inconvenience and anxiety suffered. Damages equivalent to the amount spent by the class members as a result of the extraction of their biometric data are also claimed. Moreover, the plaintiff seeks punitive damages in order to deter Google and other technology companies from intentionally or unlawfully using the image of their users.

Google primarily objects to the action on the ground that the plaintiff did not demonstrated any colour of right, contrary to section 575 (2) C.C.p.

Clarification to the state of the law regarding the colour of right criteria

Justice Donald Bisson begins his analysis with a very important clarification of the state of the law regarding the colour of the right. While it is true that the Court should not address the merits of the case at the authorization stage, it is untrue to suggest that pure assumptions, opinions, speculations and inferences not supported by evidence cannot be assumed to be true. This is...