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Class Proceeding (Fed) - Certification - 'Identifiable Class'. Doan v. Clearview AI Inc.
In Doan v. Clearview AI Inc. (Fed CA, 2025) the Federal Court of Appeal allowed an appeal of an order "dismissing her motion to certify the underlying action as a class proceeding pursuant to Rule 334.16(1) of the Federal Courts Rules", finding that the plaintiff "had not established some basis in fact that there is an identifiable class of two or more persons in the proposed proceeding":[2] Ms. Doan now appeals the FC Order. Her arguments contesting the certification judge’s Rule 334.16(1)(b) conclusion raise questions of when and how a class must be identifiable and highlight the importance and intricacies of an individual’s right to opt out of a class action.
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[13] This appeal focusses on the certification judge’s application of Rule 334.16(1)(b) and I would first underline the importance to any class action of a clear definition of the class: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para. 38 (Dutton). The Supreme Court has characterized this requirement as critical "“because it identifies the individuals entitled to notice, entitled to relief (if relief is awarded), and bound by the judgment”": Dutton at para. 38.
[14] In addition, it has long been recognized in Canadian jurisprudence that the identifiable class must be clear at the outset of the class proceeding: Dutton at para. 38; Lin v. Airbnb, Inc., 2019 FC 1563 at para. 92 (Lin). Otherwise, the provision of effective notice to class members, which typically occurs shortly after certification, is compromised. More importantly in the context of this appeal, early identification of the parameters of the class and effective notice to class members safeguard each class member’s litigation autonomy via their right to opt out of the proceeding: Sanis Health Inc. v. British Columbia, 2024 SCC 40 at para. 68.
[15] I emphasize that the requirement of a clear, identifiable class does not mean that the representative plaintiff must establish the identity and number of Class Members at the outset of the proceeding: Rule 334.18(d); (Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58 at para. 57 (Sun-Rype)) (FC Order at paras. 52-53). Rather, the evidence must demonstrate some basis in fact that two or more persons are able to determine if they are Class Members. Proof of identity occurs later in the proceeding.
[16] The "“identifiable class”" condition is met if the evidence supports "“some basis in fact”" for an objective class definition that bears a rational connection to the litigation that is not dependent on the outcome of the litigation: Greenwood at para. 168. Ms. Doan submits that the certification judge imposed an evidentiary burden more onerous than "“some basis in fact”" of an identifiable class but I do not agree.
[17] The certification judge correctly observed that the threshold for certification is low but that it is a threshold nonetheless (FC Order at paras. 31-32; Jensen v. Samsung Electronics Co. Ltd., 2021 FC 1185 at para. 60, aff’d Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, leave to appeal to SCC refused, 40807 (January 11, 2024)). The certification judge also correctly based each of her findings on the question of whether there was sufficient evidence to show some basis in fact that a Class Member would be able to identify themself as a Class Member (FC Order at paras. 51, 54, 56, 64). The fact that Ms. Doan does not agree with the evidentiary findings in the FC Order does not mean that the certification judge improperly imposed an unduly onerous burden.
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