Ruling sees error in certification judge’s finding on class member query method
The Federal Court of Appeal returned a certification matter to the Federal Court upon finding error in the judge’s conclusion that the proposed query method for class members transformed the underlying proceeding against Clearview AI Inc. into an opt-in scheme.
Clearview, the respondent in this case, was a US-based company that did business in Canada from 2019 to July 2020. According to the appeal court, the respondent:
- formed an extensive database of images using “web crawlers,” data collection programs that searched public websites around the world for photographs, their web addresses, and their webpage titles
- downloaded, stored, and indexed pictures containing faces
- offered its customers, primarily law enforcement and national security agencies, facial recognition and identification services
- had technology allowing its clientele to submit images with faces and search for similar internet images indexed in the database
The appellant, a Canadian citizen and Quebec resident, claimed copyright and moral rights in her photographs posted on the internet.
In her proposed class proceeding under r. 334.16(1) of the Federal Courts Rules, S.O.R./98-106, she alleged that Clearview committed widespread copyright infringement under the Copyright Act, 1985, and moral rights violations.
The appellant argued that Clearview collected, copied, and stored images of faces without the consent of those who took those photographs in Canada or those who held copyright and/or moral rights in those images.
She proposed a class comprising the authors of those pictures and assignees or licensees of the copyrights in those images.
The appellant requested certification of the class action under s. 52(b)(i) of the Federal Courts Act, 1985, her appointment as representative plaintiff, removal of the images collected in Clearview’s database, damages for copyright infringement and moral rights breaches, and declaratory and injunctive relief.
Certification denied
In November 2023, in Doan v. Clearview Inc., 2023 FC 1612, the Federal Court dismissed the appellant’s motion to certify the proposed class proceeding upon finding that she failed to prove that the underlying action disclosed an identifiable class of two or more persons under r. 334.16(1)(b).
The certification judge determined that class members could not self-identify based on the class definition, and Clearview could not single out the class members based on its database metadata.
The appellant proposed an alternative query method to identify class members. Specifically, she suggested that potential class members submit queries to Clearview for a report confirming their class membership.
The judge saw two fatal flaws in the recommended query method. First, the judge said Clearview would not respond to queries from Canada since it no longer had operations here and queries requiring a search for third parties.
Second, even if Clearview would respond to class members’ queries requesting reports, the judge explained that this process would unacceptably transform the opt-out class action scheme into an opt-in scheme.
The appellant challenged the Federal Court’s order.
Appeal granted
On July 16, in Doan v. Clearview AI Inc., 2025 FCA 133, the Federal Court of Appeal allowed the appeal without costs, set aside the order, and returned the appellant’s certification motion to the Federal Court.
The appeal court ruled that the certification judge wrongly found that the suggested query method would convert the opt-out scheme into an opt-in scheme and failed to examine whether the evidence showed a factual basis for a potential way to identify class members before the opt-out period ended.
Citing Ghermezian v. Canada (National Revenue), 2023 FCA 183, the appeal court noted that the pertinent factors in deciding whether it should determine the motion or remit it to the Federal Court included whether the outstanding issues were factually voluminous and complex, involved oral or documentary evidence, and required credibility assessments.
Factors also included whether the outcome was uncertain or factually suffused, whether the parties had the chance to provide specific submissions on the remaining issues, and whether the consequent delay of remitting the matter would go against the interests of justice.
In this case, the appeal court held that the appellant’s certification motion had outstanding complex evidentiary and legal questions, including issues relating to rr. 334.16(1) and 334.16(1)(b) and the parties’ arguments concerning certification conditions.
The appeal court concluded that the Federal Court would be the proper forum to determine those remaining issues and schedule the potentially lengthy hearing. The appeal court urged the Federal Court to set the hearing as soon as possible to limit delays.
