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Class Proceeding (Fed) - Opt-Out. 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".
Here the court considers an 'opt-out' issue:[19] The ability of a class member to opt out is fundamental to the integrity of the Federal Court’s class actions scheme because it protects the class member’s right to remove themselves from the class proceeding and preserve legal rights that would otherwise be determined in the class proceeding (FC Order at para. 62, citing Currie v. McDonald’s Restaurants of Canada Ltd. (2005), 74 O.R. (3d) 231 (CA), at para. 28 (Currie)). In the context of the Ontario class actions scheme, the Ontario Court of Appeal recently characterized the right to opt out as a substantive right, recognizing the "“high premium”" Canadian society places on "“a person’s ability to initiate and participate in litigation as an incident to personal autonomy”": Johnson v. Ontario, 2021 ONCA 650 at paras. 15-16.
[20] The right to opt out can only be exercised by a class member, other than through guesswork, if they have sufficient information to know whether or not they are caught within the class definition. Therefore, I find that the certification judge did not err in requiring some basis in fact that a method or process to identify Class Members must be available and viable prior to the expiry of the opt-out period. The requirement is not one of certainty. As stated in Beaulieu v. Facebook. Inc., 2022 QCCA 1736 at para. 85 (Beaulieu), leave to appeal to SCC refused, 40620 (August 31, 2023), the description of the class, or in this case the workable method, must be "“sufficient to protect the right of members to opt out and make sufficiently enlightened decisions in this respect”". The question is what information is necessary for Class Members to opt out.
[21] I would note at this juncture that there are three methods through which a class member may be identifiable in the present case. The class description may permit the person to self-identify (as in Beaulieu) or the defendant may possess the required information (as in Douez v. Facebook, Inc., 2014 BCSC 953). In this proceeding, neither of these two methods is available based on the evidence. This appeal centres on a third method: whether there is a workable, cooperative method by which a person, in light of the class definition, could obtain sufficient information from Clearview to ascertain that they are or are not a Class Member, and if so, be in a position to exercise their right to opt out. The query method would be described in the notice to potential Class Members: Beaulieu at paras. 80-85.
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A. The status of the proposed proceeding as an opt-out scheme
[23] By way of introduction, the certification judge found that Ms. Doan’s evidence did not show some basis in fact that any one of the three methods she proposed to identify Class Members would be effective. I consider certain of her evidentiary findings in the next section of these Reasons but one of those evidentiary findings was that Ms. Doan’s proposal of a query method to enable a Class Member to confirm whether one or more of their photographs (in which they assert copyright) appears in the Clearview database is unsustainable. The certification judge also found that, even if Clearview is able to, will, or could be required to, respond to queries from Canada, the process would impermissibly transform the proposed proceeding into an opt-in scheme (FC Order at para. 61).
[24] The Federal Court’s class proceeding rules clearly establish an opt-out scheme (Rules 334.17(1) f) and 334.21). An individual who does not wish to be part of a class proceeding and be bound by its results may choose to opt out of the proceeding and pursue their own recourse. The difference between an opt-out model and an opt-in model was succinctly described in Tucci v. Peoples Trust Company, 2020 BCCA 246 at para. 97:The question of whether persons coming within the class definition are automatically included in the class is one defined by legislation: typically a class proceedings regime will either adopt a model in which persons within the class definition are automatically class members, subject to opting out (the “opt out” model) or a model in which persons within the class definition do not become members of the class unless they exercise an option to do so (the “opt in” model). [25] As currently drafted, the pleadings in the underlying action contemplate an opt-out class action scheme. If a person does nothing, they remain a Class Member assuming they later prove they are a Class Member. Similarly, an individual who is unsure whether they are or are not a Class Member and who submits a query to Clearview remains a Class Member unless they choose to opt out, again assuming they later prove they are a Class Member. In other words, persons who fall within the class definition are automatically Class Members. The fact that they may choose to confirm that status via a query to Clearview, does not, in my opinion, change the characterization of the proceeding as an opt-out scheme.
[26] The jurisprudence cited by the certification judge in the course of her analysis of this issue supports her findings regarding the importance of the right to opt out (Currie at para. 28) and the fact that the Federal Court will not certify an opt-in class proceeding (Durling v. Sunrise Propane Energy Group Inc., 2011 ONSC 7506 (Durling); Lambert v. Guidant Corporation, 2009 CanLII 23379 (ONSC) (Lambert)). These cases do not suggest that a query mechanism necessarily converts a proposed class proceeding into an opt-in scheme or otherwise undermines the opt-out nature of the proceeding.
[27] In Durling, the class definition included "“[a]ll persons who were present or owned or leased or occupied properties located”" in an area of Toronto who claimed recourse after an industrial explosion in the area. Counsel for the parties agreed generally that the class action should be certified. However, one issue with certification was whether each class member should be required to register with class counsel’s online registration system. A class member who failed to register within the deadline was to be barred from future involvement in the class action. The Ontario Superior Court refused to approve the registration requirement, concluding that it would fundamentally change the structure of the action contrary to the opt-out regime contemplated by the Ontario Class Proceedings Act, 1992, S.O. 1992, c. 6 (CPA) (Durling at paras. 41-42, 54-55). Factually, the claims bar proposed in Durling required a person to take action to remain a class member. If they did nothing, they were excluded from the class action. The opposite is true in this case.
[28] As in Durling, if a class member took no action in the Lambert action, they were ousted from future participation in the proposed class action (Lambert at para. 117). At issue in the case was a proposal that class members who wanted to make claims be required to identify themselves prior to the trial of the common issues. The Ontario Superior Court rejected the proposal, as it "“would, in effect, convert the opting-out procedure under the CPA into an opting-in process”": Lambert at para. 117.
[29] The relevant analysis in the two remaining cases cited by the certification judge (Ramdath v. George Brown College of Applied Arts and Technology, 2010 ONSC 2019 and Silver v. IMAX Corp., 2013 ONSC 1667) involved factually distinct scenarios and do not address circumstances in which a person is not required to take action to remain a class member but can confirm their class membership through positive action, as here.
[30] Clearview argues that a class definition that effectively requires a class member to take steps to obtain information regarding their status is unacceptable. I do not agree. The fact there will almost inevitably be Class Members who do not engage with the process does not result in an opt-in process, nor does it thwart the objective of the class action regime in promoting access to justice. The Class Member remains part of the class and could, if they so wish, take steps to opt out. They remain unengaged at their own risk.
[31] Accordingly, I find that the certification judge erred in concluding that the method proposed by Ms. Doan whereby a Class Member could submit a query to Clearview to confirm their status would transform the proposed class proceeding into an opt-in scheme.
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[33] The right to opt out is personal to each class member. A class member must be able to determine, based on the class definition and information available to them, whether they are or are not a class member and then decide whether or not to remain involved in the class proceeding. ....
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[37] Class Members must have or be able to obtain sufficient information to protect their right to opt out. Often, class members can self-identify (Beaulieu; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57; contrast the situation in Sun-Rype where class members were not identifiable pre- or post- opt-out period) and in other cases the defendant can identify class members even if the work required is onerous (Sun-Rype at para. 62; Lin at para. 109). ....
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