Executive Summary: Key Legal and Evidentiary Issues

• Appeal quashed because it was filed without required leave under the Companies’ Creditors Arrangement Act (CCAA).

• Central legal question was whether the challenged order was made “under” the CCAA, triggering the leave requirement.

• Appellant argued the order was procedural and not substantively grounded in the CCAA jurisdiction, which the court rejected.

• Underlying facts involved cross-border insolvency recognition of U.S. Chapter 11 proceedings related to a cybersecurity breach.

• J.R. sought expanded class representation powers that would affect both Canadian and U.S. insolvency processes.

• Court held that the recognition and dismissal orders were made under the CCAA and could not be appealed without leave.

Facts and outcome of the case

This case involved a Canadian plaintiff, J.R., who sought to represent a class of Canadian customers affected by a data breach involving 23andMe. This cybersecurity incident occurred on or around October 1, 2023, and exposed private user data. In response, J.R. launched two proposed class actions in British Columbia. These proceedings remained uncertified at the time of the appeal.

On November 30, 2023, 23andMe amended its Terms of Service for U.S. customers. Shortly after, J.R. obtained a limited representation order in British Columbia on December 19, 2023, allowing him to represent the putative Canadian class only for issues related to the interpretation and application of those updated terms. This was not a full certification but an early procedural designation within the class action process.

In March 2025, 23andMe filed for bankruptcy protection in the United States under Chapter 11. The U.S. Bankruptcy Court set a deadline—July 14, 2025—for claims related to the data breach. Meanwhile, a court-appointed foreign representative, Matthew Kvarda, filed an application in the Supreme Court of British Columbia for recognition of the U.S. bankruptcy proceedings under the CCAA, which was granted on May 26, 2025.

Simultaneously, J.R. sought to expand his representation powers in both the Canadian and U.S. insolvency proceedings. He requested a restatement of the earlier limited representation order to allow filing a single consolidated claim for the entire Canadian class in either jurisdiction and to require 23andMe to issue a new notice to potential class members. The chambers judge rejected this application and granted the foreign representative’s CCAA recognition orders.

J.R. appealed this dismissal but did not seek leave to appeal, arguing that the order was not truly made under the CCAA and was therefore appealable as of right. The British Columbia Court of Appeal firmly rejected this argument, finding that the order was clearly made under the CCAA’s jurisdiction. The appellate court emphasized that the judge exercised discretion under the CCAA when recognizing the U.S. proceedings and denying the broader representation request, particularly given the principles of comity and procedural cooperation across jurisdictions.

As a result, the Court of Appeal held that it lacked jurisdiction to hear the appeal without leave and quashed it. There were no costs or damages awarded in this decision.