Executive Summary: Key Legal and Evidentiary Issues

• The proposed class definition was found to be both overbroad and under-inclusive, making it unworkable for certification.

• Individual inquiries would be required to determine actual class membership and whether data was improperly shared without consent.

• Plaintiffs sought to certify a common issue regarding nominal damages for breach of duty, but the court found this could not be determined in common.

• Lack of evidence of compensable loss undermined the suitability of a class proceeding as the preferable procedure.

• The litigation plan was deemed unmanageable due to the scale and complexity of required individual assessments.

• Costs were awarded to the defendant, Facebook Inc., as the successful party.

Facts of the case

This class action was brought by Douglas Donegani, Matthew Howat, and Lyne Brassard against Facebook Inc., alleging that Facebook misused their data by making it available to third parties—including certain apps, device integration partners, and messaging apps—without user consent. The plaintiffs claimed this sharing occurred when Facebook friends (referred to as “Installing Users”) connected their accounts to specific third-party programs, resulting in the data of their friends (“Affected Friends”) being shared as well. The class was defined as all Affected Friends in Canada from 2009 to the present, excluding Quebec residents and certain Facebook affiliates and employees.

Discussion of policy terms and class definition

The court’s analysis focused heavily on the technical and substantive challenges of the proposed class definition. The plaintiffs’ litigation plan required the creation of a “Master Class List” based on Facebook’s records, identifying users whose data may have been shared. However, the court found that the class definition was both overbroad—potentially including people who could not have a claim—and under-inclusive—excluding those whose relevant data was no longer available due to deleted accounts. The process would require individual inquiries to confirm class membership and whether data was actually shared without consent, making the class definition unworkable.

Common issues and nominal damages

The plaintiffs sought to certify a common issue regarding nominal damages for breach of the duty of honesty, good faith, and fair dealing. While nominal damages can be awarded for breach of contract without proof of loss, the court found that determining entitlement to such damages would still require individual inquiries into whether each class member’s data was shared. The court concluded that the nominal damages issue could not be determined in common at the certification stage.

Preferable procedure and litigation plan

The court found that a class proceeding was not the preferable procedure. There was no evidence of compensable loss among class members, and the plaintiffs themselves indicated that compensatory damages were unlikely, instead seeking nominal damages as symbolic vindication. The court emphasized that class proceedings should promote access to justice, behavior modification, and judicial economy, none of which would be served in this case due to the absence of compensable harm and the complexity of individual inquiries required. Regulatory proceedings were noted as a more appropriate avenue for addressing the alleged misconduct.

The litigation plan was also criticized for its impracticality, given the vast number of potential class members and the lack of evidence that the necessary data could be obtained from Facebook or third parties.

Ruling and overall outcome

Justice Akbarali declined to certify the class action, finding that the plaintiffs failed to articulate a workable class definition, that the nominal damages issue could not be certified as a common issue, and that a class proceeding was not the preferable procedure. The court awarded costs to Facebook Inc., the successful party, in the agreed amount of $500,000 all-inclusive. No compensatory or nominal damages were awarded to the plaintiffs, and the action will not proceed as a class action.