On March 1, 2022, the Divisional Court dismissed the plaintiff’s appeal from an order denying certification of a putative privacy class action against Facebook, Inc. The decision addresses the “some basis in fact” standard and reinforces the principle that a plaintiff seeking certification must provide evidence to show that a common issue exists beyond a bare assertion. The Divisional Court upheld the motion judge’s decision denying certification on the threshold basis that there was no evidence that any Canadian’s data had actually been shared with Cambridge Analytica. This decision is a valuable reminder that certification remains a meaningful screening device, requiring the plaintiff to provide an actual evidentiary basis beyond allegations or speculation.
This was one of several putative class actions filed in Canada with allegations that a third party, Cambridge Analytica, had obtained information about Canadian Facebook users from a professor and third-party application developer named Aleksandr Kogan. Osler also acted for Facebook in the plaintiff’s initial attempt for the certification of a proposed class action against Facebook in 2021. For more details, read about the successful dismissal of certification of a proposed class action against Facebook, Inc. in February 2021.
Osler, Hoskin & Harcourt LLP advised Facebook with a team consisting of Mark Gelowitz, Robert Carson and Lauren Harper (Litigation).