Morissette, Sansfaçon, Lavallée

Appeal from a judgment of the Superior Court dismissing an application for authorization to institute a class action against the respondent. Allowed; the case is referred back to the trial judge to decide the application.

The appellant faults the respondent for violating the right to privacy and inviolability of the class members by extracting, collecting, preserving, and using their facial biometric data through the Google Photos application without providing sufficient prior notice, obtaining informed consent, or publishing biometric data preservation policies, which are requirements under the Act respecting the protection of personal information in the private sector (CQLR, c. P-39.1).

Morissette, J.A.: The authorization stage of a class action is a simple screening mechanism. At this stage, to obtain authorization, applicants must meet a reduced burden of a “simple burden of “demonstration” that the … “legal syllogism” is tenable” (L'Oratoire Saint-Joseph du Mont-Royal v. J.J. (S.C. Can., 2019-06-07), 2019 SCC 35, SOQUIJ AZ-51602220, 2019EXP-1580, [2019] 2 S.C.R. 831 at para. 58). When analyzing the legal syllogism from this perspective, the facts alleged in the application are assumed to be true. Regarding the exhibits filed in support of the allegations, their only purpose is to establish that the claims are tenable, not to prove the existence of any fact whatsoever.  

Recent developments in the case law have favoured a mitigation of the requirements prior to obtaining authorization to institute a class action. If the facts alleged are sufficiently clear and precise, the applicant is exempted from providing “some evidence” in support of the allegations.

Sansfaçon, J.A.: The alleged facts regarding the existence of the Google Photos program and its feature that collects biometric data to group photographs of people according to their facial characteristics are sufficiently precise to meet the required burden of demonstration. Moreover, the exhibit taken from the respondent’s website reproduced in the appellant’s application for authorization in support of his cause of action describes this feature in sufficiently clear terms. The appellant was not required to meet the burden imposed by the trial judge of establishing how the program and the algorithms behind the application function.

The finding that the trial judge erred in concluding that there was no arguable case as to the extraction, collection, preservation, and use of the facial biometric data is sufficient to settle the outcome of the appeal. Nevertheless, the file must be referred back to the trial judge so that he may rule on the application, since one of the essential elements of the legal syllogism proposed by the appellant was neither analyzed nor decided. Indeed, the appellant does not fault the respondent for the extraction, collection, preservation, and use of the facial biometric data, but rather for obtaining this data without express authorization from the users or from the people who were photographed and whose facial biometric data is found in the respondent’s servers.

Legislation interpreted: article 575(2) CCP

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