Unofficial English Translation of the Judgment of the Court Beaulieu c. Facebook inc. 2022 QCCA 1736 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-029679-214 (500-06-000993-192) DATE: December 22, 2022 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. PATRICK HEALY, J.A. STÉPHANE SANSFAÇON, J.A. LYSE BEAULIEU APPELLANT – Applicant v. FACEBOOK, INC. FACEBOOK CANADA LTD.

RESPONDENTS – Defendants JUDGMENT [ 1 ] The appellant appeals the judgment rendered on July 27, 2021, by the Honourable Suzanne Courchesne of the Superior Court, District of Montreal, in which she refused to authorize a class action against the respondents. [ 2 ] For the reasons of Bich J.A., with which Healy and Sansfaçon JJ.A. concur, THE COURT: [ 3 ] AUTHORIZES the amendments made by the appellant to the conclusions of her appeal, as filed in the Court record at the hearing on September 21, 2022, and reproduced in paragraph [41] of the reasons set out below; [ 4 ] ALLOWS the appeal; [ 5 ] SETS ASIDE the trial judgment; [ 6 ] GRANTS the appellant’s application to institute a class action against the respondents Facebook, Inc. and Facebook Canada Ltd. (application entitled “Re-amended application for authorization to institute a class action and to obtain the status of representative plaintiff (arts. 574 ff.

C.C.P.)”); [ 7 ] AUTHORIZES the institution of this action against the respondents according to the terms set out in the paragraphs below, for and on behalf of the following group: All Facebook users located in Quebec who were seeking employment or housing or who were interested in advertisements for employment or housing and who, due to their race, sex or age, were excluded by Facebook’s advertising services from receiving advertisements for employment or housing opportunities on Facebook between April 11, 2016, and the date of this judgment ; [ 8 ] appoints the appellant Lyse Beaulieu as representative plaintiff of the class described above; [ 9 ] IDENTIFIES the principal questions of law and fact to be dealt with collectively as follows: i.

Did Facebook, Inc. and Facebook Canada Ltd. breach class members’ rights under the Quebec Charter of human rights and freedoms by allowing and facilitating the use of their advertising services to exclude individuals from viewing advertisements for employment or housing opportunities on the basis of their race, sex, or age? ii. Did Facebook, Inc. and Facebook Canada Ltd. breach class members’ rights under the Quebec Charter of human rights and freedoms by delivering employment or housing advertisements preferentially to certain individuals on the basis of their race, sex, or age? iii.

Are Facebook, Inc. and Facebook Canada Ltd. liable to the class members for moral damages, and if so, in what amount? iv. Are Facebook, Inc. and Facebook Canada Ltd. liable to the class members for punitive damages, and if so, in what amount?

v. Should an injunction be issued to prohibit Facebook, Inc. and Facebook Canada Ltd. from allowing and/or facilitating the discriminatory targeting or delivery of advertising based on race, sex, or age with respect to employment and housing opportunities? [ 10 ] IDENTIFIES the principal conclusions sought by the class action on the merits as follows: i. CONDEMN Facebook, Inc. and Facebook Canada Ltd. to pay to each member of the class an amount to be determined in moral damages, and ORDER collective recovery of these sums ; ii.

CONDEMN Facebook, Inc. and Facebook Canada Ltd. to pay to each member of the class an amount to be determined in punitive damages, and ORDER collective recovery of these sums; iii. CONDEMN Facebook, Inc. and Facebook Canada Ltd. to pay legal interest and the additional indemnity on the above amounts from the date of service of the Application for Authorization to Institute a Class Action; iv. CONDEMN Facebook, Inc. and Facebook Canada Ltd. to pay the costs of this action, including the costs associated with all notices; v.

ORDER Facebook, Inc. and Facebook Canada Ltd. to cease allowing and/or facilitating the discriminatory targeting or delivery of advertisements based on race, sex, or age; with respect to employment and housing opportunities; vi.

RENDER any other order that the Court determines in the best interests of the class members; [ 11 ] REFERS the file to the Chief Justice of the Superior Court for assignment of the judge who will manage the case and before whom it will be heard; [ 12 ] REFERS to the Chief Justice of the Superior Court or to the assigned judge all questions relating to the content, terms, and publication of the notices to class members, the opting-out period, and any other procedural issues, including the determination of the district where the class action should be instituted, unless such determination has already been made under the second paragraph of

article 572 C.C.P . ; [ 13 ] THE WHOLE with costs against the respondents, both at first instance and on appeal. MARIE-FRANCE BICH, J.A. PATRICK HEALY, J.A. STÉPHANE SANSFAÇON, J.A. Mtre Audrey Boctor Mtre Jean-Michel Boudreau Mtre Olga Redko IMK For the appellant Mtre Éric Préfontaine Mtre Julien Hynes-Gagné Mtre Emily Lynch OSLER, HOSKIN & HARCOURT For the respondents Hearing date: September 21, 2022 REASONS OF JUSTICE BICH

Table of Contents

Preamble ....................................................................................................................................... 5 I. Background ....................................................................................................................... 6 II. Analysis ........................................................................................................................... 14 A. ......... Preliminary remarks: contours of the appeal and standard for intervention 14 B. ......................................................................

Consideration of the grounds of appeal 19 1. Common issues (article 575(1) C.C.P.) ........................................................ 19 2. Description of the class ................................................................................... 26 III. Conclusion ....................................................................................................................... 33

Preamble [ 14 ] “Discrimination and class actions – converging themes in cyberspace.” That would be a good title for the appeal before this Court. They topics are not entirely unfamiliar. The law is well established with regard to both discrimination and the conditions for instituting class actions, and its inherent flexibility allows it to adapt to the circumstances of each case.

The Charter of human rights and freedoms [1] is quite capable of adjusting to the new forms of discrimination that are likely to emerge from the digital universe, and class actions can equally able to adapt to the realities arising from the use of social media like Facebook. That is what this case is all about. [ 15 ] The appellant wishes to institute a class action against the respondents, who run the Facebook digital platform, on behalf of an enormous group. She alleges certain discriminatory advertising policies and practices related to employment and housing [2] that infringe

section 10 of the Quebec Charter and give rise to all the remedies provided for in

section 49 thereof. [ 16 ] While acknowledging that the facts alleged by the appellant, who is a competent representative, seem to justify the conclusions sought and that they meet the conditions in article 575(2), (3) and

(4) C.C.P., the trial judgment nevertheless refused the authorization sought for the following reasons: (1) the determination of the discriminatory nature of the actions attributed to the respondents as they affected the class members raise many individual, subjective, and contextual issues that do not meet the requirements of article 575(1) C.C.P., as opposed to identical, similar, or related issues within the meaning of that provision; (2) the class proposed by the appellant was improperly defined. [3] [ 17 ] With the greatest respect, I do not share this point of view, and in the pages below I shall explain why, in my opinion, the authorization sought by the appellant should have been granted.

I. Background [ 18 ] According to the appellant, even though the respondents have ostensibly adopted an anti-discrimination policy in which they state, among other things, that they oversee or pre-screen advertisements delivered by the Facebook platform, [4] they do not apply that policy and in fact they allow, tolerate, promote, or encourage discriminatory advertising communications related to employment or housing based on grounds prohibited by

section 10 of the Quebec Charter , including race, sex, and age. [ 19 ] The appellant initially alleged that this discriminatory conduct is manifested in three ways. First, the tools that the respondents make available to third-party advertisers allow them to directly or indirectly target specific audiences based on race, sex, or age or other prohibited grounds by expressing a preference or an exclusion ( Ad Targeting ).

Second, even when the advertisers do not target a particular audience, the respondents’ distribution/delivery algorithms exclude certain people on the basis of grounds prohibited by law ( Ad Delivery ). And, third, the respondents allowed explicitly discriminatory advertisements to be posted on their platform ( Ad Text ). [ 20 ] According to the appellant, the first two ways are particularly pernicious, because the people who were excluded on grounds prohibited by

section 10 of the Quebec Charter do not know they were excluded. That is the situation the appellant raises: she herself was an avid Facebook user and job seeker in 2017-2019, but she never received certain employment offers that might have interested her because she was excluded from the target audience due to her age or gender, either because of a deliberate exclusion by the advertiser or by the respondents’ ad placement algorithms.

The record does not explain how the appellant became aware of the exclusion affecting her, but once she realized what was going on – i.e. that she had not received certain ads due to her age or her gender – her dignity was profoundly injured. [ 21 ] That is why in April 2019 the appellant sought authorization from the Superior Court to institute a class action against the respondents, whom she held responsible for the direct, indirect, or even arguably systemic discriminatory practices in the distribution of advertisements on Facebook.

She claimed the remedies of compensatory damages (moral, in this case), punitive damages, and an injunction to cease the practices in question.

[ 22 ] The appeal record reproduces the re-amended version of that application, dated January 20, 2021.

At the time, the class the appellant wished to represent was described as: All Facebook users located in […] Quebec who were interested in receiving or pursuing employment or who were seeking housing and who, as a result of their race, sex, civil status, age, ethnic or national origin, or social condition, were excluded by Facebook’s advertising services from receiving advertisements for employment or housing opportunities, or who were explicitly excluded from eligibility for these opportunities through advertisements posts on Facebook, between April 11, 2016 and the date of judgment in the present proceedings. [ 23 ] The application states that, in 2019, the respondent Facebook, Inc., which had been sued and denounced in the United States for the practices in question, promised to change its advertising policies and no longer authorized ads based on race, gender, age, or other prohibited grounds.

This change applied only to American Facebook users, however. But in January 2020 (after the appellant filed her originating application), the respondents announced that the same changes would be made in Canada, effective on December 31, 2020.

It nevertheless appears that those changes affect only the tools made available to third-party advertisers, not the selections made by the respondents’ algorithms. [ 24 ] It should be pointed out that the respondent’s evidence, which consists of a sworn statement by Anthony Howard, Director, Privacy and Data Policy at Facebook, Inc., does not contradict the appellant’s allegations of fact, at least not head-on, but it does add to the context. According to Mr.

Howard, when ads are posted on Facebook, the respondents do not know whether the advertisers are posting on other media or how their Facebook posts form part of their overall advertising strategies. [5] He stated that employment and housing ads make up only a small part of all the ads posted on Facebook [6] and that the platform’s “self-serve tools” give advertisers the choice of targeting one audience or another. [7] He explained that Facebook does not include a “race targeting option” among those tools, [8] but that advertisers can choose to target their ads based on characteristics such as gender, age, interest, behaviour, activities, and various geographic and demographic factors. [9] [ 25 ] Mr.

Howard also noted that advertisers who publish on Facebook undertake not to discriminate, in compliance with the respondents’ policy. [10] He further stated that, as of December 31, 2020, the respondents had extended a policy to Canada under which they no longer authorized advertisers “to target housing or employment ads based on age, gender, postal code, or any other option identifying or describing protected characteristics.” [11] He also explained that the review process set up by the respondents is limited and is performed by automated means. [12] In Canada, that process did not reveal whether an ad was related to employment or housing or contained discriminatory language. [13] Nevertheless, as of December 31, 2020, “Facebook’s automated review process will attempt to identify ads that are likely to be housing and employment ads.” [14] He also pointed out that anyone using the Facebook platform can complain at any time about an ad they deem discriminatory.

If the respondents agree, the ad will be removed. [15] * * [ 26 ] As we have seen, the trial judge dismissed the appellant’s application for authorization. In general, although it met the conditions in article 575(2), (3) and

(4) C.C.P., it did not meet the one set out in article 575(1) and proposed a group that was improperly defined in a way that could not be remedied. [ 27 ] But we will have to say a little more to do justice to the reasoning that led the judge to that conclusion. [ 28 ] With regard to the Facebook distribution of advertisements targeted according to race, sex, or age, whether chosen by the advertisers or applied by the respondents’ algorithms, the judge found that the facts alleged by the appellant, which must be taken as proven, appeared to justify the conclusions sought, as required by article 575(2) C.C.P.

To reach that conclusion, she relied on a double analysis framework, i.e. the one the Supreme Court outlined to guide the authorization of class actions, superimposed on the one it had developed itself for discrimination cases where a person alleges they have been subjected to treatment prohibited under

section 10 of the Quebec Charter . In her opinion, the appellant’s syllogism can be supported within these parameters (based on the decisions in Infineon Technologies AG v. Option consommateurs , [16] L’Oratoire Saint-Joseph du Mont Royal v. J.J . , [17] and Desjardins Financial Services Firm Inc. v. Asselin , [18] among the cases cited by the judge). Relying on sections 4 and 10 of the Quebec Charter , the syllogism created an arguable case in light of the Supreme Court’s ruling in Québec (Commission des droits de la personne et des droits of the jeunesse) v.

Bombardier Inc. (Bombardier Aerospace Training Center) . [19] The syllogism can also be supported under sections 11 and 16 of the Quebec Charter . [ 29 ] The judge also found that the appellant’s claim was valid with regard to the three types of remedies suggested: compensatory damages for non-pecuniary injury, punitive damages, and an injunction to stop the respondent’s practices. [ 30 ] However, according to the judge, the allegations in the application did not justify the conclusions sought with respect to the grounds of discrimination other than race, sex, and age, or with respect to ads containing expressly discriminatory text. [ 31 ] Last, we must note the judge’s comments on the respondents’ arguments: [110] As submitted by Facebook, the alleged discriminatory ads may represent isolated incidents, or the restrictions they impose could be legitimate and lawful either on the basis of occupational requirements or because the ads were part of a larger, non-targeted advertising effort through parallel advertising. [111] Facebook also contends that it fulfilled its duty to accommodate the members of the proposed Class by implementing reasonable measures up to the point of undue hardship and that it would be unmanageable and unrealistic for Facebook to review every advertisement posted on its platform. [112] While these arguments appear serious and could be successful on the merits, the Court must limit itself in performing its screening task to analyzing the proposed legal syllogism and not the various defenses that Facebook could raise against the legal action.

These arguments and means of defence rest on

summary evidence at this stage. They would be analyzed and considered at the second

phase of the applicable discrimination test, at the stage of the merits, on the basis of a full evidentiary record. [113] Furthermore, Facebook submits that it cannot be held liable as an intermediary, a service provider, in conformity with the provisions of the Act to establish a legal framework for information technology and in light of the recent Canada-United States-Mexico Agreement which provides more rigorous protection for websites hosting user-generated content. [114] Facebook contends that it is not an editor or publisher of advertisements since it has no control or final authority over the content of an ad posted on its self-service platform.

As a result, it cannot be held liable for the discriminatory activities of its users unless it fails to act once it becomes aware of a specific illicit activity on its platform.

Also, Facebook submits that it is under no obligation to actively monitor the information published on its platform for potential illicit activity. [115] However, although Facebook’s recently implemented initiative to prevent discriminatory targeting of users by its advertisers for housing and employment opportunities constitutes a positive development and improvement, it raises doubts as to its purported incapacity to intervene and prevent publication of illegal ads on its platform. [116] The time to weigh defences as against the allegations of the motion for authorization that are assumed to be true is, as a general rule, at trial.

Furthermore, the determination of Facebook’s intermediary liability is not a pure question of law and raises complex determinations of fact and law which should be examined at a later stage. [References omitted] [ 32 ] The judge also felt that the condition in article 575(3) C.C.P. had been met: given the number of people potentially covered by the action and its nature, it would be difficult and impracticable to apply the rules for mandates to take

part in judicial proceedings on behalf of others or for consolidation of proceedings. [ 33 ] Lastly, she concluded that the appellant is in a position to properly represent the class members in accordance with article 575(4) C.C.P. [ 34 ] The sticking point, however, was the condition in article 575(1) C.C.P. The judge reasoned that the case did not include enough common issues to properly advance the cause of all class members, but that it instead required a contextual analysis for not only each member, but also each advertiser.

The individual issues would therefore take precedence over the common ones: [43] Essentially, the first proposed questions aim at determining if Facebook’s advertisement practices breached class members’ rights under the Quebec Charter . For this determination, the Court would have to conclude that: - The members were excluded from viewing advertisements for employment or housing opportunities; - On the basis of their protected characteristics; - In consequence, the members’ rights under the Quebec Charter were breached. [44] The present case raises several individual issues since

i) although Facebook’s advertising practices are primarily targeted by the Application, the advertisements are conceived, created and placed by third-party advertisers who, for several different reasons, legitimate or not, may select their audience and exclude Facebook users from viewing their ads; ii) as acknowledged by Ms.

Beaulieu, it is hardly possible for Facebook users to know what advertisements or opportunities they did not see, if they were in fact excluded and if this exclusion was due to discrimination. [45] Contrary to other class action discrimination cases, the systemic component of the present matter appears considerably undermined by subjective issues.

Whether an advertisement, its targeting or delivery, is discriminatory is a context-specific determination that depends on the evaluation of multiple factors and applicable legal standards that would differ from ad to ad. [46] In addition, the right to dignity protected by

article 4 of the Quebec Charter is at the heart of this case, as discussed further.

While the analysis of the compromise of the protected right to dignity must first be made according to an objective standard, the impact of the alleged infringement must then be assessed in the specific context of the litigation. [47] In the context raised by the allegations, an examination of the specific context of each advertisement and of each Facebook user, including their own particular traits and circumstances, would be required to determine whether the user’s right to dignity was impaired. [48] Even if the Court were to identify as common issue the determination as to whether Facebook’s advertising practices permit or actively facilitate discriminatory ad targeting and delivery, its resolution would not advance the class members’ claims in a not insignificant manner. [ 35 ] What is more, according to the judge, the class was improperly defined to the point that it could not be identified, and the Court could not remedy that defect: [50] Facebook pleads that no class can be identified.

The Court agrees with this assertion. [51] First, Ms. Beaulieu alleges that many if not most class members are not even aware that they are members of the class or that they have been discriminated against.

She adds that it is not possible for Facebook users to know what advertisements or opportunities they did not see because they were allegedly excluded by Facebook’s targeting algorithms. [52] The purported advertising practices have allegedly caused members of the group to be excluded from receiving employment or housing ads, but such exclusion could only be determined at trial, upon complete and exhaustive evidence. Thus, the class membership depends on the outcome of the class action on the merits.

[53] Furthermore, the class definition makes it difficult if not impossible for a person to know at the outset whether or not they are included in the class, because of their ignorance of their personal exclusion on the basis of discrimination; therefore, they are incapable of exercising their option to opt out of the class, which is an essential right, subject to a time limit. [54] In addition, the proposed class definition includes Facebook users who were interested in receiving employment or housing advertisements. Ms.

Beaulieu alleges that: Each class member was interested either in employment or housing opportunities and has sought out or paid attention to advertisements on Facebook in relation to these types of opportunities, or would have paid attention to and acted on such opportunities had they been presented to the class member. (Emphasis added) [55] The Court agrees that it is impracticable and disproportionate to include users who had an interest, a mere curiosity in being informed of potential housing or employment opportunities.

This criterion is arbitrary and purely subjective. [56] Even if the Court were to redefine the Class to exclude this criterion, the definition of the group would remain too broad, circular, and unmanageable at the post-authorization stage. It would basically include all Facebook users in Quebec, possibly several million members , who, to be part of the class, would have to determine if they were or not excluded from receiving advertisements they did not receive, as a result of their protected characteristics.

This determination is impossible at this stage. [57] The composition of the class is highly problematic and impossible to define, to the point that it becomes an impediment to the exercise of a class action in this case. [ 36 ] The judge’s refusal to authorize the proposed class action was thus based on those two reasons. * * [ 37 ] The appellant appealed as of right under

article 578 C.C.P., contending that her action included sufficient common issues to justify authorization for the proposed group, which, under the circumstances, was properly defined. II. Analysis [ 38 ] A few preliminary remarks are in order before we address the heart of the matter. A.

Preliminary remarks: contours of the appeal and standard for intervention [ 39 ] I will first define the contours of the appeal and then go over the applicable standard for intervention. * * [ 40 ] First, as she states in paragraph 35 of her written arguments, the appellant does not contest the judge’s decision to refuse to authorize the action with regard to the explicitly discriminatory advertisements ( Ad Text ); she also does not contest the limitation of the definition of the grounds of discrimination to race, sex, and age, to the exclusion of the other grounds enumerated in

section 10 of the Quebec Charter : 35. The first judge concluded that the allegations and exhibits support a cause of action for discriminatory ad targeting based on the prohibited grounds of sex, age, and race only (paras. 83-84). She found insufficient support for explicit discriminatory statements in advertisement (para. 83).

The Appellant does not appeal these aspects of the Judgment . [Emphasis added] [ 41 ] Since the conclusions of the notice of appeal and her written arguments do not reflect that acknowledgement, the appellant suggested an amendment that would reformulate the definition of both the class and the issues to be dealt with collectively. Her application to amend was submitted to the Court during the hearing of the appeal, and the respondents did not oppose it.

The conclusions she proposes henceforth are as follows: FOR THESE REASONS, MAY IT PLEASE THE COURT: ALLOW the appeal in Superior Court file 500-06-000993-192; GRANT the Petitioner’s Application; AUTHORIZE the class action on behalf of the following class: All Facebook users located in Quebec who were interested in receiving or pursuing employment or who were seeking housing and who, as a result of their race, sex, […] or age […] were excluded by Facebook’s advertising services from receiving advertisements for employment or housing opportunities […] on Facebook, between April 11, 2016, and the date of judgment in the present proceedings.

IDENTIFY the principal questions of law and fact to be dealt with collectively as follows: i. Did Facebook breach class members’ rights under the Quebec Charter or other applicable provincial human rights legislation or applicable law by allowing and facilitating the use of its advertising services to exclude individuals from viewing advertisements for

employment or housing opportunities on the basis of their race, sex, […] or age […]? … iii. Did Facebook breach class members’ rights under the Quebec Charter or other applicable provincial human rights legislation orapplicable law by delivering employment or housing advertisements preferentially to certain individuals on the basis of their race, sex,[…] or age […]? iv. Is Facebook liable to the class members for non-pecuniary damages, and if so, in what amount? v. Is Facebook liable to the class members for punitive damages, and if so, in what amount? vi.

Should an injunction be issued to prohibit Facebook from allowing and/or facilitating the discriminatory targeting of advertisementsbased on race, sex, […] or age […] with respect to employment and housing opportunities? IDENTIFY the conclusions sought by the class action as follows: I. CONDEMN Facebook, Inc. and Facebook Canada Ltd. to pay to each member of the class an amount to be determined for non-pecuniary damages, and ORDER collective recovery of these sums; II.

CONDEMN Facebook, Inc. and Facebook Canada Ltd. to pay to each member of the class an amount to be determined for punitivedamages, and ORDER collective recovery of these sums; III. CONDEMN Facebook, Inc. and Facebook Canada Ltd. to pay legal interest and additional indemnity on the above amounts fromthe date of service of the Application for Authorization to Institute a Class Action; IV. CONDEMN Facebook, Inc. and Facebook Canada Ltd. to bear the costs of the present action including the costs associated with allnotices; V.

ISSUE an injunction prohibiting Facebook, Inc. and Facebook Canada Ltd. from allowing and/or facilitating the discriminatorytargeting or delivery of advertisements based on race, sex, […] or age […] with respect to employment and housing opportunities; VI. RENDER any other order that the Court shall determine and that is in the best interests of the class members.

ORDER the Respondents to provide to class counsel, in electronic form, a list containing the names and last known coordinates of allmembers of the proposed class; DECLARE that any member of the class who has not requested his/her exclusion from the class be bound by any judgment to berendered on the class action, in accordance with law; FIX the deadline for exclusion from the class at sixty (60) days from the date of the notice to the members, after which time thosemembers who did not request exclusion from the class shall be bound by all judgments to be rendered with respect to the class action; ORDER the publication of a notice to the members of the class drafted according to the terms of form VI of the Rules of Practice of theSuperior Court of Québec in the manner and locations to be determined by the Court; REFER the present file to the Chief Justice for determination of the district in which the class action should be brought and designationof the Judge before whom it will be heard; THE WHOLE with costs, including the costs of publication of all notices. [42] The respondents do not contest the trial judge’s conclusions with regard to subparagraphs (2), (3) and (4) of

article 575 C.C.P.,although they could have done so without having to bring an incidental appeal.[20] [43] Absent any such contestation, the debate on appeal concerns only how common the issues raised by the proposed class action areand the definition of the class. If the Court were to find that the judge erred on both these points, it would simply have to grant the appealand authorize the class action, without having to reassess the other conditions in

article 575 C.C.P. This situation is analogous to that in Vivendi Canada Inc. v. Dell’Aniello,[21] in which LeBel J. and Wagner J. (now C.J.) wrote the comment below, which is even morerelevant when the “other criteria” are not contested: [35] A class action may be authorized only if the four criteria of art. 1003 C.C.P. [now 575 C.C.P.] are met. If the motion judge errsin law or if his or her assessment with respect to any criterion of art. 1003 C.C.P. is clearly wrong, the Court of Appeal can substitute itsown assessment, but only for that criterion and not for the others.

An error in relation to one criterion does not give the Court of Appealcarte blanche to reconsider all the other criteria to be met before the bringing of a class action may be authorized.[22] [Emphasis added] * * [44] On a separate issue, we must now review the relevant standard of intervention as defined by Kasirer J. for the Supreme Court inDesjardins Financial Services Firm Inc. v.

Asselin:[23] [223] Judges have broad powers at the authorization stage; they have considerable leeway in assessing whether the four authorizationconditions set out in art. 1003 C.C.P. [now 575 C.C.P.] are met. (Harmegnies, paras. 20-24 ; see also Lafond at pp. 153-154). Ifa judge is of the opinion that each condition is met, he or she must authorize the action, as provided for in art. 1003 C.C.P., and has no

discretion to decline to do so (see also Vivendi at para. 67). [224] This broad power to assess is reflected in the applicable standard for appellate intervention: palpable and overriding error. As thisCourt recently observed, an appellate court’s power to intervene is limited when it hears an appeal from a decision on a motion forauthorization to institute a class action (Oratoire, at para. 10, per Brown J.).

Intervention by the Court of Appeal will be justified only ifthe authorization judge’s assessment of the conditions of art. 1003 C.C.P. is clearly wrong (see also Vivendi, at para. 34; Federal ExpressCanada Corporation v. Farias, 2019 QCCA 1954, at para. 2 ; Benabu (C.A.), at para. 3 ). If the Court of Appealchooses to intervene on the basis that, in its view, the assessment of one of the authorization conditions is clearly wrong, it can substituteits own opinion only with respect to that condition (Vivendi, at para. 35; Sofio v.

Organisme canadien de réglementation du commercedes valeurs mobilières (OCRCVM), 2015 QCCA 1820, at para. 17 ; Sibiga, at paras. 32-35; Boiron Canada inc., at para. 37;Belmamoun v. Brossard (Ville), 2017 QCCA 102, 68 M.P.L.R. (5th) 46, at para. 70). Of course, the Court of Appeal can intervene ifthere is an error of law, because the standard applicable to questions of law is correctness.

The fact remains, however, that an appellatecourt’s power of intervention is limited and that it must defer to the authorization judge’s assessment of the conditions of art. 1003C.C.P.[24] [Emphasis added] [45] This Court is faithful to that principle. For example, in Boudreau c. Procureur général du Québec,[25] Lavallée J.A. recentlywrote: [translation] [13] The appeal of a judgment on an application for authorization of a class action is subject to a strict standard of intervention. This isself-evident, given the considerable discretionary power conferred on the authorizing judge when assessing the criteria in

article 575C.C.P. [reference omitted]. Consequently, the Court must defer to his or her conclusions and intervene only if the judge erred in law or ifhis or her assessment of the criteria is clearly wrong [reference omitted]. It should be recalled that in Karras c.

Société des loteries duQuébec, this Court emphasized that [translation] “at the authorization stage, the possibility that another judge might have decidedotherwise is not the same as a conclusion that the judgment under appeal is clearly unfounded and therefore warrants the Court’sintervention” [reference omitted].[26] [46] In this case, I find, with respect, that the judgment contains reviewable errors, with regard to both article 575(1) C.C.P. and thedescription of the class.

Certainly, the Superior Court judge enjoyed considerable discretion in this case, but I believe she erred in law bydiverging from the Supreme Court’s principle regarding common issues and by setting unduly demanding requirements for the definitionof the class, ignoring the context of the case. B. Consideration of the grounds of appeal [47] Although the common issues and the class description converge to some extent, I will deal with them separately. 1.

Common issues (article 575(1) C.C.P.) [48] As stated in article 575(1) C.C.P., a court may authorize a class action only if “the claims of the members of the class raiseidentical, similar or related issues of law or fact / les demandes des membres soulèvent des questions de droit ou de fait identiques,similaires ou connexes”.There has been no ambiguity about this provision since Vivendi Canada Inc. v. Dell’Aniello,[27] as Kasirer J.noted succinctly in Desjardins Financial Services Firm Inc. v.

Asselin:[28] [84] It should be borne in mind that, at the authorization stage, the decisions of the Quebec courts and of this Court require “a flexibleapproach to the common interest that must exist among the group’s members” (Vivendi, at para. 54). As a result, “even wherecircumstances vary from one group member to another, a class action can be authorized if some of the questions are common” (Vivendi,at para. 58).

It is clear from the decided cases that [translation] “[t]he fact that the situations of all members of the group are not perfectlyidentical does not mean that the group does not exist or is not uniform” (Infineon, at para. 73, citing Guilbert v. Vacances sans FrontièresLtée, (QC CA), [1991] R.D.J. 513, at p. 517) and that, “[a]t the authorization stage, the threshold requirement forcommon questions is low” (para. 72). [85] Although some jurisdictions require that the common questions predominate, in Quebec, a single common question is sufficientas long as it advances the litigation in a not insignificant manner.

LeBel J. and Wagner J. (as he then was), writing for a unanimousCourt, explained this clearly in Vivendi (see para. 58; see also Oratoire, at paras. 15, 18 and 20). I would also note that the C.C.P.requires not a common answer, but rather a common question (Vivendi, at para. 51). … [87] According to the decided cases, attempting to determine whether the common question predominates distracts us from the centralissue at the authorization stage, which is whether the common question plays a not insignificant role in the outcome of the case (seeVivendi, at para. 60; Oratoire, at para. 20).

A common question may advance the litigation even if many individual questionsremain.[29] [49] Weight must be given to the rule expressed by LeBel J. and Wagner J. (as he then was) in Vivendi that “common questions do nothave to lead to common answers.”[30] In the same judgment, referring to case law from other provinces and Dutton[31] and Rumley inparticular,[32] it is made clear that a “common question can exist even if the answer given to the question might vary from one memberof the class to another.”[33] This comment applies a fortiori to Quebec law, which applies a less stringent test.[34] As a result, thecriterion of article 575(1) C.C.P. “may be met even if the common questions raised by the class action require nuanced answers for thevarious members of the group.”[35]

[50] At the analysis stage covered by this chapter, the decision is not whether the common issues and the answers provided willguarantee the success of the class action. At the authorization stage, as is well known, the applicant merely has to demonstrate, ionaccordance with article 575(2) C.C.P., the existence of a supportable, arguable case, which is a very low bar. Granting authorization toinitiate a class action therefore does not necessarily mean that a case will be won on the merits; it is just as likely that the commonquestions the court answers will lead to its dismissal.

The case law provides many such examples. But that is not what must be assessedwhen considering whether the proposed action raises identical, similar or related issues, and the analysis of the condition in subsection(2) of

article 575 must not be performed (or re-performed) in the guise of considering the condition in subsection (1). [51] In light of this principle, it cannot be denied that the appellant’s proposed class action does indeed raise some individual issues,but it is simultaneously clear that it contains a fair number of questions that are truly common, that will play a not insignificant role in theoutcome of the dispute, and that will advance the litigation even if they do not “make a complete resolution of the case possible”[36] andeven if the answers that may be given to some are likely to vary from one member to another.

Let us consider. [52] The appellant’s first two major questions (as amended) are: − Did Facebook breach class members’ rights under the Quebec Charter or other applicable provincial human rightslegislation or applicable law by allowing and facilitating the use of its advertising services to exclude individuals from viewingadvertisements for employment or housing opportunities on the basis of their race, sex, […] or age […]? − Did Facebook breach class members’ rights under the Quebec Charter or other applicable provincial human rightslegislation or applicable law by delivering employment or housing advertisements preferentially to certain individuals on the basis oftheir race, sex, […] or age […]? [53] When it comes to determining whether – as the appellant contends – the respondents’ employment and housing advertisingpolicies and practices contravene sections 10 and 4 or sections 10, 11 and 16 of the Quebec Charter (the double syllogism accepted bythe first judge), due to either audience targeting practised by third-party advertisers or their own algorithms (Ad Targeting or AdDelivery),[37] several common questions come immediately to mind, given the state of the law governing discrimination[38] andparticularly the analytical framework recommended in Bombardier:[39] [35] First, s. 10 requires that the plaintiff prove three elements: “(1) a ‘distinction, exclusion or preference’, (2) based on one of thegrounds listed in the first paragraph, and (3) which ‘has the effect of nullifying or impairing’ the right to full and equal recognition andexercise of a human right or freedom” (Forget, at p. 98; Ford, at pp. 783-84; Devine v.

Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 790, at p. 817; Bergevin, at p. 538). [36] If these three elements are established in accordance with the degree of proof we will specify below, there is “prima faciediscrimination”. This is the first step of the analysis. [37] Second, the defendant can then, also in accordance with the degree of proof we will indicate below, justify his or her decision orconduct on the basis of the exemptions provided for in the applicable human rights legislation or those developed by the courts.

If thedefendant fails to do so, discrimination will then be found to have occurred: McGill University Health Centre (Montreal GeneralHospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161 (“McGill”), at para. 50; see alsoMoore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 (decided under British Columbia’s human rights code), atpara. 33.

This is the second step of the analysis. [54] Based on that framework, the following questions can already be identified in this case: − What in fact are the respondents’ advertising policies and practices with regard to employment and housing, and what precisely dothey consist of?

How are they applied and what are their actual consequences? − Do the objectives or the effects of these advertising policies and practices create one or more distinctions, exclusions, orpreferences? − Are these distinctions, exclusions or preferences, or any of them, based (as the case law defines that term) wholly or partly ongrounds prohibited by

section 10 of the Quebec Charter, in this case race, sex, or age? [55] These three questions (and all the sub-questions arising from them), which reflect the first two elements of the prima facieburden of proof that falls on the appellant on the merits pursuant to Bombardier,[40] are common to all the class members, and it is quitelikely that common responses could be made, as both the questions and the answers in this case will advance the litigation.

To quoteVivendi, this aspect of the case “lends itself to a collective decision and … once a decision has been reached on that aspect, the partieswill have resolved a not insignificant portion of the dispute.”[41] [56] There may be an individual component to the question as to whether any of the distinctions, exclusions or preferences, if theyexist, have the effect of destroying or compromising the right to full and equal recognition and exercise of a human right or freedom in away that can be established as an infringement of

section 4 of the Quebec Charter (in fact, this is one of the appellant’s suggestions).Nevertheless, as stated in the majority opinions of Wagner C.J. and Côté J. in Ward v. Québec (Commission des droits de la personne etdes droits of the jeunesse),[42] such an infringement should not be measured purely against the feelings of the person affected.

Section 4“does not permit a person to claim respect for their dignity, but only the safeguarding of their dignity, that is, protection from the denialof their worth as a human being” (para. 58), which requires “a high level of gravity that does not trivialize this very meaningful concept”(para. 57) and “cannot be assessed in a purely subjective manner” (ibid.). An “objective analysis” is therefore required (ibid.), based onthe reasonable person standard (paras. 74 and 104) and not on traits particular to each person (contrary to what we find in paragraph 47 ofthe trial judgment).

There is therefore an objective dimension to the question of whether the distinctions, exclusions or preferences, ifestablished, compromise the right to the safeguarding of the dignity of the members of the class proposed by the appellant that meets arequirement – that of the reasonable person – that is common to everyone who is a member of the class (and the questions do not becomeindividual merely because the class can be divided according to the grounds of discrimination on which the distinctions, exclusions, and

preferences are based – i.e. race, sex or age; the central question remains a common one). [57] The same is true regarding the alternative argument that the distinctions, exclusions or preferences infringe sections 10 and 11 or 16 of the Quebec Charter . Here again, the question itself can be divided into several sub-questions (of law principally or of mixed fact and law) that are common to all group members: Do the practices denounced by the appellant infringe

section 11 (which would require determining the meaning and scope of that provision, on which there is little case law)? For the purposes of

section 11 , must we distinguish advertisements delivered according to a third-party advertiser’s targeting from those delivered according to the respondents’ algorithms? Since the respondents are not being sued here in their capacity as employers, can they be charged with violating

section 16 ? Could they be liable under this provision because their advertising policies and practices encourage, facilitate or sanction the discriminatory conduct of advertisers as potential employers? [43] Regardless of the answer, thee are questions that will advance the litigation in a not insignificant manner. [58] But we are still only at the first part of the analysis called for in Bombardier [44] and reiterated in Ward . [45] In the second part, several common questions can be identified from the defence arguments that the respondents might raise before the court.

They are referred to summarily in the trial judgment, [46] Mr. Howard’s sworn statement, [47] and the respondents’ factum. In no particular order they are: Can the respondents be held liable for employment or housing ads they have not created but merely distribute (or allow to be distributed) based on the advertisers’ preferences? If so, on what conditions?

Are they technologically capable of controlling the employment or housing ads circulating on the Facebook platform in such a way that they can abolish targeting based on race, sex, or age, whether such targeting is done through their own algorithms or is based on the advertisers’ preferences? What impact would the existence of the respondents’ anti-discrimination policy have on the outcome of the litigation?

If we consider them intermediaries who provide a communication service (which, in itself, raises the question of how to characterize them), would the respondents be exempt from all liability pursuant to the provisions of the Act to establish a legal framework for information technology ? [48] To determine the truly discriminatory nature of the ads by third-party advertisers, is it necessary to consider each advertiser’s overall advertising strategy (which might be aimed at only a limited client base on Facebook, but at a different client base on other media)? How does

section 20 of the Quebec Charter (which allows distinctions, exclusions or preferences based on justifiable professional requirements or the needs of certain institutions) factor in against that backdrop? All these questions are common and, once again, regardless of the answers, they will advance the litigation in a not insignificant (and potentially even determinative) manner.

Another equally common and not insignificant question is whether the fact that the respondents have changed their practices in Canada since 2021 is relevant to the litigation and could defeat the action or affect potential remedial measures. [59] Last, if the Superior Court were to conclude on the merits that there was discrimination contrary to sections 10 and 4 , 11 or 16 of the Quebec Charter , the question of the remedies sought (injunction, compensatory damages, punitive damages) also has common aspects. [60] But I will stop here, because it is not for me (nor would it be possible or necessary) to list all the questions that are likely to arise, in fact or in law, from the two major issues the appellant raises with regard to the discriminatory nature of the respondents’ advertising policies and practices.

The conclusion appears to be foregone: notwithstanding the individual nature of some aspects of the litigation, the common questions raised by the allegations in the application for authorization or arising from them – including the ones formulated in the respondents’ pleadings – are numerous and of a nature to advance the litigation in a not insignificant manner. [61] I therefore do not share the trial judge’s opinion when she wrote that, “[c]ontrary to other class action discrimination cases, the systemic component of the present matter appears considerably undermined by subjective issues”, [49] and that the determination of the discriminatory nature of the respondents’ policies or practices depends “on the evaluation of multiple factors and applicable legal standards that would differ from ad to ad.” [50] I believe that she undervalued the systemic and general dimension of the case and favoured its individual aspects, ignoring the common questions.

That is a reviewable error. [62] As was the case in Vivendi and Asselin , the trial judge made the mistake of giving too much importance to “the possibility that numerous individual questions would ultimately have to be analyzed” [51] ( Vivendi , para. 60). It is not wrong to say that individual questions will eventually have to be dealt with, but that is not the determinative factor.

Rather, it must be asked whether the appellant has “established the existence of a common question that would serve to advance the resolution of the litigation with respect to all the members of the group.” [63] However, as we have just seen, there is not just one common question. Rathr, there are many common questions, both of fact and of law, that would advance the outcome of the litigation for all members of the class, no matter how that class is defined.

I will now turn to the topic I believe has played a decisive role in this case: The class proposed by the appellant is considerable and the case management and outcome on the merits of a lawsuit including so many people (potentially) is surely not without challenges. But does that mean the application for authorization should be dismissed? 2.

Description of the class [64] The trial judge found that the appellant’s suggested description was based on arbitrary and subjective criteria that are dependent on the outcome of the litigation, making it impossible for a person to know whether or not they are included in the class and preventing them from exercising their right to opt out as provided for by law. [52] What is more, the group would be so large – counting potentially several million people – that it would be unmanageable (more specifically, “unmanageable at the post-authorization stage” [53] ). [65] With all due deference, I do not share this view, which I feel is not in line with the flexible and liberal approach to the

interpretation and application of

section 575 C.C.P. prescribed by the case law, and which is also incompatible with the teachings of this Court, in particular those laid out in Sibiga c. Fido Solutions inc. : [54] [137] The burden of showing the class to be of the proper size is generally said not to be a heavy one . In Hollick , [reference omitted] Chief Justice McLachlin wrote that there must be a rational link between the common questions and the class as identified in the motion .

She added that it must be shown that “the class is not unnecessarily broad – that is, that the class could not be defined more narrowly without arbitrarily excluding some people who share the same interest in the resolution of the common issue”. Where the class could be

defined more narrowly, wrote the Chief Justice, the motion judge should either disallow certification or allow certification on condition that the definition of the class be amended.

Importantly, the class can be redefined in Quebec law not just at authorization, but at later stages in the process as well . [138] Quebec courts have developed rules for understanding the appropriate definition of the class: the definition must be founded on objective criteria with a rational foundation; the definition of the class must not be circular or imprecise; and it cannot be based on criteria that are dependent on the outcome of the action on the merits . … [149] Additionally, an overly strict approach to the definition might serve to undermine the liberal approach that the Supreme Court had advised for interpreting the requirements for authorization of class actions in Vivendi and Infineon .

I am struck by the fact that at paragraph [73] of the latter case, LeBel and Wagner JJ. cited with approval observations made by this Court in Guilbert v. Vacances sans Frontière Ltée , [reference omitted] regarding the inappropriateness of narrowing the class in a consumer class action where common questions amongst members are judged to be sufficient: [TRANSLATION] The fact that the situations of all members of the group are not perfectly identical does not mean that the group does not exist or is not uniform.

To be excessively rigorous in defining the group would render the action useless ... in situations in which claims are often modest, there are many claimants and dealing with cases on an individual basis would be difficult. [p. 517] [Emphasis added] [66] First, it has to be said that, while the description of the class may be problematic, it is not because it targets too large a number of people; the number of class members is not the only determinant. A class action should not be dismissed as unmanageable because it contains even millions of people.

The case law provides several examples, including the class action against the tobacco companies (civil liability for the sale of a dangerous product) [55] or, more recently, that against Nissan Canada Inc. (related to a hacking incident that compromised personal data). [56] [67] Although managing such a group can undoubtedly generate all kinds of difficulties, especially in terms of the administration of evidence or remedies (as was also apparent in the class action against the tobacco companies), this is not a reason to refuse authorization.

The law allows for creative remedies, and there are abundant examples in the case law. And, of course, given the vocation of the procedural vehicle of a class action, authorization must not be refused on the paradoxical grounds that the class contains too many members. [57] [68] In the case before us, is the class description circular or imprecise, does it depend on the outcome of the litigation, or is it so flawed that it prevents the putative members from identifying themselves and exercising their right to opt out? [69] We will begin with an aside.

This Court set out all these criteria in the form of questions in Paquin c. Compagnie de chemin de fer Canadien Pacifique [58] in 2005, where they received rather flexible application. They were tightened up in George c. Québec (Procureur général) [59] in 2006, and then again in Lallier c. Volkswagen Canada inc. [60] The tightening of the criteria relied in particular on case law from outside Quebec, [61] and the question therefore arises as to whether it will survive the Supreme Court’s rulings in Infineon and Vivendi , among others.

In any event, they have withstood the test of time, at least in terms of their wording, as is apparent in Levy c. Nissan Canada inc. [62] (2021), but at the same time, they have become more flexible and malleable, as also appears from Levy (which I will discuss below in paragraph [86]) and Sibiga [63] (above, at paragraph [65]). [70] Regardless, I believe that the description of the class in this case is adequate and does not have the faults alleged by the respondents. [71] The proposed description is neither circular nor particularly vague.

The appellant obviously modelled it on her own situation in order to define it clearly. [72] What is the appellant’s personal situation? While she was looking for a job and consulting Facebook frequently as an avid user, the appellant was deprived, on the basis of her age or her sex, of access to employment ads that might have interested her, which deprivation she considers to be an infringement of the full and equal safeguard of her dignity, in violation of sections 10 and 4 of the Quebec Charter , or an infringement of the rights protected by sections 10, 11 and 16 of that same Charter .

Her research has led her to conclude that the situation resulted from the respondents’ advertising policies and practices and extended generally to the subject areas of employment and housing (two areas that are particularly sensitive to the nefarious effects of discrimination based on race, sex, or age). [73] The class she proposes is modelled on that profile.

This is what she suggests: All Facebook users located in Quebec who were interested in receiving or pursuing employment or who were seeking housing and who, as a result of their race, sex, […] or age […] were excluded by Facebook’s advertising services from receiving advertisements for employment or housing opportunities […] on Facebook, between April 11, 2016, and the date of judgment in the present proceedings. [64] [74] The appellant therefore wants to target people who have a practical, direct, and real interest in the action she wishes to take against the respondents, i.e., people who were looking for employment (as she was) or housing during the period in question or who were interested in receiving advertisements in these subject areas during that period and were allegedly excluded from such advertising for reasons pertaining to their race, sex, or age.

This is what emerges from the following paragraphs of the application for authorization, which describe people situations analogous to the appellant’s: 46. Each class member was interested either in employment or housing opportunities and has sought out or paid attention to advertisements on Facebook in relation to these types of opportunities, or would have paid attention to and acted on such opportunities had they been presented to the class member.

47. Each class member was excluded by Facebook’s advertising services from receiving advertisements for employment or housing opportunities as a result of their race, sex, civil status, age ethnic or national origin, or social condition. [65] [75] In short, the appellant proposes not an arbitrary definition, but one that is reasonable, sufficiently precise, and rationally connected to the cause and object of the action.

It is a definition that matches the claim she wishes to make, or, to quote from Sibiga , that is “aligned with the claim as framed by the applicant”. [66] The analysis could end there, but I will go further. [76] Apart from the time element, membership in the class according to the appellant’s description is therefore limited by three requirements: (1) being a Facebook user; (2) having been interested in employment or housing advertisements or having been seeking employment or housing at the relevant time; and (3) not having received ads for jobs or housing due to race, sex or age. [77] The first requirement is not problematic. [78] Nor is the second.

It is of course a self-referential condition, but that is not at all unusual in class actions. It would not be the first time that a group was defined based on a characteristic that can only be self-diagnosed at this stage . That does not make the condition subjective, and it is not unverifiable, although it may be said that it depends principally on the credibility of the declaration each potential member would have to make. [79] Nor does it cause any difficulty with regard to opting out [67] (which allows individuals to preserve their right to proceed on their own).

Anyone who was looking for a job or housing on Facebook at the time or who was interested in receiving ads about those subject areas will be able to identify himself or herself as a member and then choose to opt out of the class.

Eventually, persons who do not opt out will eventually have to establish their status as members, and that will be a simple question of evidence and assessment of the evidence (although the administration and management of such evidence might require numerous mechanisms to verify applications – but there again, the class action framework allows for measures that are often innovative and effective on a large scale). [80] As for the third requirement, it can be conceded that, since the members who did not receive advertisements did not know they were not receiving them, the fact that it is a condition precedent to belonging to the class raises an a priori difficulty of identification or even self-identification.

How can anyone know whether he or she was a member of the class before the outcome of the litigation is known, since at this stage of the proceedings it is hard to know whether he or she was excluded from the delivery of job or housing ads and, if so, whether that exclusion was based on race, sex or age? And if the person cannot know, would he or she not be at risk of being deprived of the right to opt out?

That was considered an insurmountable obstacle in the trial judgment. [68] [81] Upon reflection, I do not think these are real difficulties. [82] We must take into account the specific nature of the cause of action the appellant wishes to bring before the courts: she is denouncing a hidden, indirect, and systemic form of discrimination that the alleged victims are unaware of precisely because it is hidden, indirect and systemic.

We must consider that aspect of the case and adapt to it the usual class composition rules which, as Kasirer J.A. reminded us in Sibiga, [69] are not to be interpreted or applied rigidly, at the risk of undermining the generous approach required for authorizations (especially since the issue of the description of the class is not formally governed by

article 575 C.C.P. but flows from the other conditions or is subsumed in them). This seems especially appropriate to me, because the case before us deals with public order and interest, turning as it does on fundamental rights. [83] The fact that the victims of surreptitious discriminatory behaviour are unaware of it is not in my view a bar to the class action proposed on their behalf merely because it would be impossible to define the class precisely enough for them to identify themselves right away or because that definition depends on the outcome of the case.

In Bombardier , the Supreme Court of Canada reiterated that the Quebec Charter allows for the recognition of new forms of discrimination, [70] and class actions may certainly follow suit, without changing their nature and without flouting the conditions for authorization. [84] Further, although this description does not allow class members to self-identify with certainty, it does not constitute an actual obstacle to the right to opt out.

If a person is unaware of the situation the appellant is denouncing, the class description, together with the other information in the notice prescribed by the second paragraph of

article 576 and

article 579 C.C.P., will provide sufficient detail to enable the person to opt out of the class because he or she was not interested in employment or housing ads during the period in question. And even if the person was interested, he or she may still opt out of the class to protect the individual right to take action alleging exclusion based on race, sex or age, even if the person does not at that point know whether this was actually the case.

There may also be people who do not want to join a class action on principle or who are not sympathetic to the cause of action maintained by the appellant and will opt out of it. [85] In short, the description of the class (with some amendments to the appellant’s formulation that I will propose later on) is sufficient to protect the right of members to opt out and make sufficiently enlightened decisions in this respect.

Ultimately, the fact that most members of the class do not really know whether they have been victims of the policies and practices for which the appellant criticizes the respondents is of no great significance to the right to opt out guaranteed by the Code of Civil Procedure . It might be a useful or convenient piece of information, but it is not essential. [86] In any event, the fact that this requirement could affect the members’ rights to opt out or that it may depend on the outcome of the case did not seem to have concerned this Court in Levy c.

Nissan Canada inc. [71] In that case, the application for authorization to institute a class action stemmed from the potential compromise of personal data due to a hacking incident. The first judge limited the class to the portion of the clientele that Nissan had informed in writing about the hack.

Anxious not to deprive people who might have been targeted by the piracy of Nissan’s stored data but who had not, for one reason or another, been notified of their rights, this Court expanded the class to include everyone “ whose personal or financial information held by Nissan Canada was compromised in a data breach of which Respondent was advised by the perpetrators by email on December 11, 2017 ”), regardless of whether they were aware of the hacking incident or its consequences.

Those people were obviously in the same situation as the class members described by the appellant in this case, who did not receive employment or housing ads for reasons related to race, sex, or age: they do not know whether they are covered by the proposed class action, and will be able to find out only during the hearing on the merits or even at the end of the class action.

[87] This was not an obstacle for this Court in Nissan , and it should not be one here. This is all the more true since, and I repeat, in the case before us, the condition in question in no way prevents people who are potential members of the class from opting out with full knowledge pursuant to articles 576, 579 and 580 C.C.P., with all the ensuing consequences. [88] In short, in this case, the proposed description, which is indeed “aligned with the claim as framed by the applicant”, is adequate.

It remains adequate even though its current wording suffers from a certain clumsiness in drafting, which became more clearly apparent when translated for the purposes of the conclusions recommended by these reasons. [72] Nevertheless, the class is defined in substance, and, to return to the topic considered in the previous section, it is not [ translation ] “so diffuse that its members cannot identify identical, similar or related questions of law or fact.” [73] The previously identified common questions are in no way diluted by the numbers, and they will advance the resolution of the litigation in respect of all class members.

III. Conclusion [89] For all of the above reasons, I would (1) authorize the appellant’s proposed amendments to the conclusions of her proceedings; (2) grant them; (3) grant the appellant’s application for authorization; and, consequently, (4) authorize the class action she wishes to initiate against the respondents, the whole with costs both on appeal and at first instance. [90] I therefore suggest that this Court render the conclusions below.

The French draft of the description of the class, the principal issues and the conclusions sought essentially correspond to the English version proposed by the appellant, [74] adapted to accord with these reasons (see below at paragraphs [91] and [92]): [ translation ] AUTHORIZES the amendments made by the appellant to the conclusions of her appeal, filed in the Court record during the hearing of September 21, 2022, and reproduced in paragraph [41] of the attached reasons; ALLOWS the appeal; SETS ASIDE the trial judgment; GRANTS the appellant’s application to institute a class action against the respondents Facebook, Inc. and Facebook Canada Ltd. (the application entitled “Re-amended application for authorization to institute a class action and to obtain the status of representative plaintiff (arts. 574 ff.

C.C.P.)”); AUTHORIZES the initiation of this action against the respondents on the terms set out in the paragraphs below, for and on behalf of the following group: All Facebook users located in Quebec who were seeking employment or housing or were interested in employment or housing advertisements and who, due to their race, sex, or age, were excluded by Facebook’s advertising services from receiving advertisements for employment or housing opportunities on Facebook between April 11, 2016, and the date of this judgment; APPOINTS the appellant Lyse Beaulieu as representative plaintiff for the group thus described; IDENTIFIES the principal questions of law and fact to be dealt with collectively as follows: i.

Did Facebook, Inc. and Facebook Canada Ltd. breach class members’ rights under the Quebec Charter of human rights and freedoms by allowing and facilitating the use of their advertising services to exclude individuals from viewing advertisements for employment or housing opportunities on the basis of their race, sex, or age?? ii. Did Facebook, Inc. and Facebook Canada Ltd. breach class members’ rights under the Quebec Charter of human rights and freedoms by delivering employment or housing advertisements preferentially to certain individuals on the basis of their race, sex, or age? iii.

Are Facebook, Inc. and Facebook Canada Ltd. liable to the class members for moral damages, and if so, in what amount? iv. Are Facebook, Inc. and Facebook Canada Ltd. liable to the class members for punitive damages, and if so, in what amount? v. Should an injunction be issued to prohibit Facebook, Inc. and Facebook Canada Ltd. from allowing and/or facilitating the discriminatory targeting or delivery of advertising based on race, sex, or age with respect to employment and housing opportunities? IDENTIFIES the principal conclusions sought on the merits of the class action as follows: i.

CONDEMN Facebook, Inc. and Facebook Canada Ltd. to pay each member of the class an amount to be determined in moral damages and ORDER collective recovery of these sums; ii. CONDEMN Facebook, Inc. and Facebook Canada Ltd. to pay each member of the class an amount to be determined in punitive damages and ORDER collective recovery of these sums; iii. CONDEMN Facebook, Inc. and Facebook Canada Ltd. to pay legal interest and the additional indemnity on the above amounts from the date of service of the Application for Authorization to Institute a Class Action ; iv.

CONDEMN Facebook, Inc. and Facebook Canada Ltd. to pay legal costs, including the costs associated with all notices; v. ORDER Facebook, Inc. and Facebook Canada Ltd. to stop allowing and/or facilitating the discriminatory targeting and delivery of

advertisements with respect to employment and housing based on race, sex, or age; vi.

RENDER any order that the Court determines in the best interests of the class members; REFERS this file to the Chief Justice of the Superior Court for assignment of the judge who will manage the case and before whom it will be heard; REFERS to the Chief Justice of the Superior Court or to the assigned judge all questions relating to the content, terms, and publication of the notices to class members, the opting-out period, and any other procedural issues, including the determination of the district where the class action should be instituted, unless such determination has already been made under the second paragraph of

article 572 C.C.P.; THE WHOLE with costs against the respondents, both at first instance and on appeal. [91] When it comes to the description of the class, it is clear from the appellant’s pleadings and these reasons that she seeks to represent Facebook users in Quebec who were interested in ads for employment or housing or were seeking employment or housing during the period in question [75] (i.e., from April 11, 2016, to the date of this judgment). She worded her description in a way that is hard to translate (“who were interested in receiving or pursuing employment or who were seeking housing”).

Similarly, “were excluded … from receiving advertisements … ” was translated by “ ont été exclu ·e· s … de la distribution d’annonces …” While attempting to stay as close as possible to the English version, the French version of the class description therefore contains slight adjustments required by the language and in accordance with the status of the file. [92] When it comes to the principal questions of fact and law, it is clear that I do not recommend providing a detailed enumeration of all the sub-questions that could possibly arise, as I tried to do summarily above (see above in paragraphs [54] to [59]), with a result that is clearly not exhaustive.

For the purposes of the judgment of the Court, I suggest that the principal questions be limited instead to those identified by the appellant, which will not prevent any related sub-questions from being raised as required by the evidence and the law. [93] That said, I wondered about the wording of the appellant’s two first questions, which refer not only to the Quebec Charter but also to any “other applicable provincial human rights legislation or applicable law”. [76] What can that mean?

The appellant has based her case solely on the potential violation of the anti-discrimination provisions of the Quebec Charter , and this was the basis on which the trial judge felt that the condition in the second paragraph of

article 572 C.C.P. had been met, thereby validating the proposed syllogism. The appellant has also not identified any other statutes that might be relevant.

Accordingly, for the sake of consistency, it is preferable to delete this cryptic and generic reference to other statutes, hence my recommendation in paragraph [90] above (questions i and ii). [77] [94] On another topic, the appellant has also asked this Court to make the following rulings: ORDER the Respondents to provide to class counsel, in electronic form, a list containing the names and last known coordinates of all members of the proposed class; FIX the deadline for exclusion from the class at sixty (60) days from the date of the notice to the members, after which time those members who did not request exclusion from the class shall be bound by all judgments to be rendered with respect to the class action; ORDER the publication of a notice to the members of the class drafted according to the terms of form VI of the Rules of Practice of the Superior Court of Québec in the manner and locations to be determined by the Court; REFER the present file to the Chief Justice for determination of the district in which the class action should be brought and designation of the Judge before whom it will be heard; [95] I do not believe this Court should include those conclusions in its ruling, because they all refer to case management and should be referred back to the Superior Court by way of the second-to-last and third-to-last conclusions proposed in paragraph [90] above. [96] As for this conclusion proposed by the appellant: DECLARE that any member of the class who has not requested his/her exclusion from the class be bound by any judgment to be rendered on the class action, in accordance with law; it appears unnecessary in view of

article 580 C.C.P., a contrario , as well as the second paragraph of

article 2848 C.C.Q. MARIE-FRANCE BICH, J.A.