Class Action Proceeding Against Cadillac Fairview For Biometric Information Collection In Malls Rejected In BC

On May 15, 2025, in Cleaver v The Cadillac Fairview Corporation Limited, 2025 BCSC 910, the Supreme Court of British Columbia (the “Court”) refused to certify a proposed class action alleging that Cadillac Fairview Corporation Limited (Cadillac) breached the privacy rights of proposed class members by collecting their biometric information, including facial images, without consent.

In 2018, Cadillac launched a pilot project, embedding cameras into wayfinding directories in malls across Canada. The cameras were equipped with software to estimate visitor counts and collect age and gender demographics. Between 2018 to 2020, the Office of the Privacy Commissioner of Canada and its provincial counterparts in Alberta and British Columbia (collectively, the Commissioners) launched a joint investigation to determine whether Cadillac’s pilot project involved the unauthorized collection of personal information. The Commissioners’ 2020 joint report concluded that Cadillac had collected personal information in violation of applicable privacy laws (as previously reported by the E-TIPS® Newsletter here).

Following the joint report, the plaintiffs commenced a civil proceeding in British Columbia with various causes of action, including intrusion upon seclusion, breach of statutory privacy rights, negligence, and breach of certain Québec laws. They sought to certify a single national class of individuals who viewed a directory at one or more of the applicable malls during the relevant time periods, including any persons that accompanied them (e.g., minors).

Although the Court was satisfied that certain causes of action had a reasonable prospect of success, it found no factual basis that class members could self-identify with the proposed class definition of “all persons who viewed a wayfinding directory” during the relevant time periods. This was because (i) Cadillac, as part of its collection process, transformed collected personal information to numerical representations and it was highly unlikely that this data could be used by individuals to identify themselves as class members; and (ii) it was not clear whether every individual that viewed a directory had their personal information collected. The Court also found that the plaintiffs failed to establish whether the proposed common issues are capable of determination on a class-wide basis; or a class proceeding is the preferred process to resolve the common issues.

Ultimately, the Court dismissed the plaintiffs’ application to certify the action as a class proceeding.

Summary By: Victoria Di Felice