Ontario Divisional Court Dismisses Appeal For Class Action Certification Against Facebook

On March 1, 2022, the Ontario Divisional Court (the Court) issued its decision in Simpson v Facebook, Inc., 2022 ONSC 1284, dismissing an appeal from an order denying certification of a class proceeding against Facebook, Inc. and Facebook Canada LTD. (collectively, Facebook). The proposed class proceeding relates to a privacy incident in which the personal information of Facebook users was improperly shared with Cambridge Analytica Group (Cambridge Analytica).

In the 2016 United States general election, it was discovered that personal information obtained from Facebook users without their consent was used in a targeted messaging campaign by Cambridge Analytica. This information was collected through the app, “thisisyourdigitallife”, which was presented to Facebook users as a personality quiz for academic research. The app’s owner sold this information to Cambridge Analytica. Based on Facebook’s estimates, the personal data of 622,161 Canadian Facebook users may have been accessed or shared in the incident.

The appellant filed a proposed class action on behalf of “Canadian residents whose Facebook Information was shared with Cambridge Analytica Group” alleging that by allowing the incident to occur, Facebook breached their own terms of use and invaded the privacy of the Canadian class members. The appellant relied on the tort of intrusion upon seclusion and brought a motion requesting certification of the proposed class action.

The appellant’s request for certification was denied by the motion judge (2021 ONSC 968). The motion judge found that the appellant failed to satisfy the common issue requirement of the Class Proceedings Act (the CPA) and, in particular, did not provide sufficient evidence that Canadian users’ data had actually been shared with Cambridge Analytica. The appellant appealed.

On appeal, the Court found that the motion judge did not err in principle by focusing on the common issue certification requirement under the CPA. The Court stated that having “a proposed common issue must be a substantial ingredient of each class member’s claim” and such issue should rightfully be grounded in some factual basis. In this case, the main proposed common issue relied on the alleged sharing of Canadian Facebook users’ data with Cambridge Analytica. Given that the motion judge found no evidence in the record to support this allegation, the Court concluded that he did not err in dismissing the motion for failing to meet the common issue requirement. The Court further determined that the motion judge did not make a palpable and overriding error in his review of the evidentiary record, nor in interpreting the carriage order.

The Court dismissed the appeal and ordered costs in favor of Facebook in the amount of $40,000, all inclusive.

Summary By: Imtiaz Karamat