Bich, Healy, Sansfaçon

Appeal from a judgment of the Superior Court dismissing an application to authorize a class action. Allowed.

The appellant brought her application against the respondents, who operate the digital platform Facebook. She alleges against them certain discriminatory advertising policies and practices with respect to employment and housing that violate section 10 of the Charter of human rights and freedoms (CQLR, c. C-12) and give rise to the various remedies set out in section 49 of the Charter.

The trial judge refused the authorization sought for two reasons: (1) the determination of the discriminatory nature of the acts attributed to the respondents with respect to the class members would raise many individual, subjective, and contextual issues that would not satisfy the requirements of article 575(1) of the Code of Civil Procedure (CQLR, c. C-25.01), rather than identical, similar, or related issues within the meaning of that provision; and (2) the class proposed by the appellant is improperly defined.

The judge erred in law by departing from the teachings of the Supreme Court regarding common issues and by establishing unduly high requirements with respect to the definition of the class, ignoring the context of the case.

Although the proposed class action raises certain individual issues, it also includes a substantial number of truly common issues that will play a significant role in the outcome of the dispute and advance the debate, even if they do not lead to a complete resolution and if the answers to some of them may vary from one class member to another. Because it is necessary to determine whether the respondents’ advertising policies and practices with respect to employment or housing violate certain provisions of the Charter of human rights and freedoms due to the audience targeting by third-party advertisers or programmed by their own algorithms, there are several common issues, in light of the state of the law on discrimination and, in particular, the analytical framework recommended in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), (S.C. Can., 2015-07-23), 2015 SCC 39, SOQUIJ AZ-51198416, 2015EXP-2203, J.E. 2015-1228, [2015] 2 S.C.R. 789. Next, if the Superior Court concludes on the merits that there is discrimination contrary to sections 10 and 4 as well as 11 or 16 of the Charter of human rights and freedoms, there are also common aspects to the issue of the remedies sought.

As for the description of the class, although problematic, it is not because it concerns too many persons: on its own, the number of class members is not determinative. Moreover, it is neither circular, nor particularly vague. The appellant based it on her own situation, obviously so as to make it clearer. Membership in the class will be conditional on three requirements: (1) using Facebook; (2) having been interested by employment or housing advertisements or having been searching for employment or housing at the relevant time; and (3) having not received employment or housing advertisements on grounds of race, sex, or age. It should be noted that the second requirement raises no difficulty with respect to the right to opt out. As for the third requirement, although at first glance it raises identification, or self-identification problems, the particular nature of the cause of action must be kept in mind in this case. The appellant alleges a form of hidden, indirect, and systemic discrimination, of which the alleged victims are unaware precisely for this reason.

Text of the decision: http://citoyens.soquij.qc.ca