Simpson v Facebook: Denial of Certification upheld by Divisional Court

This article was originally published by the Ontario Bar Association.

The recent decision in Simpson v Facebook Inc. ¹ brings an end to one of several proposed class actions arising from the Cambridge Analytica scandal.² On March 1, 2022, the Divisional Court affirmed an order denying certification of a proposed privacy class action against Facebook. The motion judge denied certification on the basis that there was no evidence for the “core allegation” that Canadian Facebook user’s personal data was actually shared with Cambridge Analytica, and thus no basis in fact for the proposed common issues.³

The Divisional Court's decision

Justice Bell, writing for the Court, reaffirmed that certification decisions are entitled to substantial deference.⁴ He held that the motion judge did not err in his application of the certification test or in his interpretation of the carriage order.⁵ Nor did he commit a palpable and overriding error in finding that there was no evidence of the core allegation.⁶ In reaching this conclusion, the Divisional Court confirmed that the threshold requirement for a plaintiff to adduce some evidence does not amount to an “assessment of the merits” or a requirement to “prove the core allegation at the certification stage.”⁷

The plaintiff advanced several other arguments relating to findings of fact, including that the motion judge relied on a “hole in the evidence of his own creation” by upholding Facebook’s refusal to answer certain questions on cross-examination. The Divisional Court rejected this argument. It held that the motion judge’s prior ruling “does not excuse the appellant from her evidentiary obligation to show some basis in fact for the core allegation,” though it noted that the plaintiff did not appeal the decision on the refusals motion.⁸

Key takeaway

This decision serves as a useful reminder that “while certification remains a low hurdle it is nonetheless a hurdle” – especially when challenged on appeal.⁹ Although certification was denied because of the lack of evidence of the alleged breach, this decision is consistent with the recent trend in proposed privacy class actions whereby courts have denied certification based on a failure to provide some evidence of compensable harm.¹⁰

This decision also reinforces how the strategic and procedural considerations that litigants face prior to certification – ranging from carriage disputes to refusals motions – can shape the outcome of a proposed class action. Notably, both the motion judge and the Divisional Court remarked that the other proposed action against Facebook, if certified, will “advance the very claims that cannot be advanced here.”¹¹ While the outcome of that action remains to be seen, both Courts appear to take comfort in knowing that the “proposed class will not be left without recourse.”¹²

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