Evidence, an elementary principle at the authorization stage of a class action
The widespread belief of our Quebec jurisdiction in class actions reflects the image of a paradise for any plaintiff at the authorization stage. In Homsy v. Google 2022 QCCS 722, the Superior Court makes an important clarification regarding this issue. While it is true that the Supreme Court’s jurisprudence has reiterated the low threshold in order to institute a class action, this recent decision reiterates that the authorization stage is not a law-breaking step. Evidence remains central in determining whether the plaintiff has an arguable case.
The plaintiff alleges that Google LLC (hereinafter "Google") has performed, since October 2015, through Google Photos, the extraction, the collection, the retention and the use of the facial biometric data of Québec residents prior giving sufficient notice, receiving an informed consent these residents and publishing policies for the retention of biometric data.
In support of his claim, the plaintiff invokes numerous sections, including the ones relating to the protection of the right to privacy and the right to inviolability under the Charter of Human Rights and Freedoms and the Civil Code of Quebec. The plaintiff also alleges several breaches of the protection of private information under the Act Respecting the Protection of Personal Information in the Private Sector. Finally, the plaintiff refers to the sections dealing with misleading representations under the Consumer Protection Act.
The plaintiff sues Google for non-pecuniary damages in order to receive compensation for the inconvenience and anxiety suffered. Damages equivalent to the amount spent by the class members as a result of the extraction of their biometric data are also claimed. Moreover, the plaintiff seeks punitive damages in order to deter Google and other technology companies from intentionally or unlawfully using the image of their users.
Google primarily objects to the action on the ground that the plaintiff did not demonstrated any colour of right, contrary to section 575 (2) C.C.p.
Clarification to the state of the law regarding the colour of right criteria
Justice Donald Bisson begins his analysis with a very important clarification of the state of the law regarding the colour of the right. While it is true that the Court should not address the merits of the case at the authorization stage, it is untrue to suggest that pure assumptions, opinions, speculations and inferences not supported by evidence cannot be assumed to be true. This is actually the key element of this decision. The Court reiterates that general and inaccurate allegations in an originating application are insufficient to meet the required the threshold of having a good colour of right. The prima facie right requires that some evidence are be presented in support of the application. The low threshold at the authorization stage cannot overcome the lack of evidence or demonstration that there is an arguable cause. This reasoning of the Superior Court is based on Oratory St. Joseph, Infineon and Ehouzou.
On this point, Justice Bisson provides examples of allegations which, without any evidence, cannot be held to be true: "the defendants have conspired to increase the price of such product" or "my kettle is not working because the manufacturer has voluntarily installed a defective heating element". An allegation concerning the conduct of a party must be supported by some evidence.
Justice Bisson also points out that while an allegation relating to a factual element may generally be held to be true, it cannot be the case if it is unbelievable.
The Court dismisses the application to institute a class action because no evidence was presented in support of the allegations concerning the actions of Google. Instead, Justice Bisson notes that the allegations only describe the plaintiff’s theory of case and adds nothing more.
Furthermore, the Court criticizes several documents produced by the plaintiff because they do not contain any specific reference to Google.
Moreover, an article presented by the plaintiff cannot be considered as sufficient evidence since the author is, as described by the Court, an "person unknown". There is not enough specific details provided by the author in his article in order to consider it anything more than an opinion piece. The Court concludes that this type of article is insufficient to meet the requirement of providing some sort evidence, because, if not, this "would mean that it would be possible to trigger a class action on mere suspicion or unidentified and unverifiable articles of opinion".
This decision of the Superior Court reiterates an elementary principle : the plaintiff must show a serious colour of right, supported by some evidence. Thus, the so-called "low" threshold for class action is still a serious threshold that cannot be taken lightly.
It should be noted that this decision is subject to an appeal. It will therefore be interesting to closely follow the outcome of this case and benefit from the Court of Appeal’s teaching on the quality of the evidence that must be presented in order to demonstrate the presence of an arguable case. Will the flexible approach that must be applied at the authorization stage of a class action be interpreted as allowing allegations that do not support in any event a cause of action?
 Infineon Technologies AG v. Option consommateurs, 2013 SCC 59; Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1; Oratory Saint-Joseph du Mont-Royal v. J.J., 2019 SCC 35; Desjardins Financial Services Firm Inc. v. Asselin, 2020 SCC 30