2023 FC, 2023 FC 1612

Date: 20231130 Docket: T-713-20 Citation: 2023 FC 1612 Montréal, Quebec, November 30, 2023 PRESENT: The Honourable Madam Justice St-Louis BETWEEN: Ha Vi DOAN Plaintiff and CLEARVIEW INC Defendant ORDER AND REASONS I. Overview [ 1 ] Ms.

Ha Vi Doan, the Plaintiff, seeks an order certifying her underlying action as a class proceeding and for her appointment as representative plaintiff, the whole under Rule 334.1 and following of the Federal Courts Rules (SOR/98-106 ) [the Rules ]. [ 2 ] The underlying action relates to Clearview AI Inc.’s [Clearview] conduct, a US based corporation that provides facial recognition and identification services using a facial recognition technology data. Ms.

Doan essentially claims Clearview’s actions amount to blatant, intentional and widespread copyright infringements of the defined class [the Class or Class Members], described below, and violations of the moral rights of the Class Members since the collection, possession, reproduction, use, distribution, rental, sale, and offering for rent and for sale of the photographs collected by Clearview occurs without the consent of the rights holders. Ms.

Doan adds that by doing so, Clearview systematically breached and continues to breach sections 3(1) , 27(1) , 27(2) , 27(4) , 14.1 , 28.1 and 28.2 of the Copyright Act (RSC 1985, c.C-42 ) with respect to the Class Members’ works. [ 3 ] In her underlying action, Ms.

Doan seeks various declarations under the Copyright Act , notably a declaration that Clearview infringed the copyright of the Copyright Infringement Class Members and the moral rights of the Moral Rights Class Members as described below; general pecuniary and non-pecuniary, punitive, aggravated, and statutory damages for Clearview’s copyright infringements and moral rights violations; an order for aggregate assessment of damages owed to the Class Members; and an order directing Clearview to remove from its database and to destroy all copies of the Collected Photographs, to cease collecting photographs over which the Class Members hold copyright and/or moral rights, and to prevent the photographs over which the Class Members hold copyright and/or moral rights from appearing in Clearview’s search results. [ 4 ] Ms.

Doan submits that all the conditions for certification of her action as a class proceeding, as stated at Rule 334.16 of the Rules , have been met, while Clearview responds that none of the conditions have been met. [ 5 ] Ms. Doan’s motion will be dismissed. For the reasons that follow, I find that Ms. Doan has not satisfied at least one of the conjunctive conditions set out in Rule 334.16 (1) as she has not established some basis in fact that there is an identifiable class of two or more persons per Rule 334.16(1) (

b) of the Rules . II. Background A. Overview [ 6 ] On July 7, 2020, Ms. Doan initiated an action against Clearview and filed a Statement of Claim - Proposed Class Proceeding. She then proposed to bring a class action on behalf of the following two different classes, i.e. the Privacy Breach Class and the Copyright Infringement Class. [ 7 ] Per the Privacy Breach Class, Ms. Doan alleged that Clearview collected, copied, stored, used, and in some cases disclosed publicly available photographs found on the internet without her or the proposed Privacy Breach Class Members’ knowledge or consent. Ms.

Doan alleged that these actions breached a number of federal and provincial statutes, including the Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5 ) [the PIPEDA ] and the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11[the Charter ]. [ 8 ] On November 6, 2020, Clearview brought a motion to strike pursuant to Rule 221(1) (

a) of the Rules to strike the portions of the pleadings contained in the proposed class proceeding instituted by Ms. Doan that concerned the Privacy Breach Class. In its motion to strike, Clearview alleged that

(1) Ms. Doan did not have standing to bring the action in regards to the Privacy Breach Class before the Federal Court, pursuant to sections 14 and 15 of the PIPEDA , as only a complainant or the Privacy Commissioner can seek remedies for an alleged breach, and no other federal law grants the Court the necessary jurisdiction to do so; (2) at the time the pleadings were filed, the Privacy Commissioner had not issued a report; and (3) the Court had no jurisdiction to hear claims based on alleged breaches of provincial statutes.

[ 9 ] On May 6, 2021, Clearview’s motion to strike was granted and Ms. Doan did not appeal. As a result of the Order, only the Copyright Infringement Class remained in the action. [ 10 ] On September 17, 2021 (Amended Statement of Claim) Ms. Doan amended her Statement of Claim. On October 21, 2021, Ms. Doan filed her initial Motion record, including her first affidavit. On November 12, 2021, Ms. Doan amended her Statement of Claim (Further Amended Statement of Claim). On June 30, 2022, Ms.

Doan filed an Amended Notice of Motion to Certify the Proceeding as a Class Proceeding and informally requested, with Clearview’s consent, leave to amend, which was granted by Case Management Judge Alexandra Steele on July 4, 2022. [ 11 ] On July 19, 2022, Ms. Doan filed a Re-re-Amended Statement of Claim and modified the proposed Class to reflect the amendments made in the Amended Notice of Motion. On September 2, 2022, Clearview filed its Motion Record in response. [ 12 ] On October 12, 2022, Ms. Doan amended her Statement of Claim and filed her Re-re-re Amended Statement of Claim. B.

Order sought on this Motion for Certification [ 13 ] In her Amended Notice of Motion, Ms. Doan, on her own behalf and on behalf of the Class Members, seeks the following orders from the Court: 1. An order seeking certification of this proposed class proceeding as a class proceeding pursuant to s. 334.15 and ff. of the Rules ; 2. An order defining the Class or Class Members as follows:

a) all natural persons, as defined below, who are the authors of the photographs collected by Clearview (the Collected Photographs) and who have not assigned or licensed their copyrights in the Collected Photographs to any persons, and all natural or legal persons, as defined below, to whom the authors of the Collected Photographs assigned or licensed their copyrights in the Collected Photographs (the Copyright Infringement Class or the Copyright Infringement Class Members);

b) all natural persons, as defined below, who are the authors of the Collected Photographs whether or not they have assigned or licensed their copyrights in the Collected Photographs (the Moral Rights Class or the Moral Rights Class Members); “Natural persons” means natural persons who are either residents or citizens of Canada. “Legal persons” means legal persons constituted under the laws of Canada or one of its provinces or territories or having a place of business in Canada; 3. An order appointing Plaintiff as the representative plaintiff of the Class (the Representative Plaintiff); 4. An order stating the nature of the claims made on behalf of the Class against the Defendant as follows:

a) Claims in copyright infringements and moral rights violations against Clearview in connection with Clearview’s collection, possession, reproduction, use, distribution, rental, sale, and offering for rent and for sale of the Collected Photographs in violation of the Class Members’ rights; 5. An order setting out the questions contained in Appendix A to this Amended Notice of Motion as the common questions of law or fact for the Class; 6. An order awarding declaratory relief, injunctive relief and damages, as more fully set out below; 7. An order stating the relief claimed by the Class as follows:

a) a declaration that Clearview infringed the copyright of the Copyright Infringement Class Members;

b) a declaration that Clearview infringed the moral rights of the Moral Rights Class Members;

c) an order directing Clearview to: i. remove from its database and to destroy all copies of the Collected Photographs; ii. cease collecting photographs over which the Class Members hold copyright and/or moral rights; iii. prevent the photographs over which the Class Members hold copyright and/or moral rights from appearing in Clearview’s search results;

d) general pecuniary and non-pecuniary, punitive, aggravated, and statutory damages for Clearview’s copyright infringements and moral rights violations;

e) an order for aggregate assessment of damages owed to the Class Members;

f) pre-judgment and post-judgment interest pursuant to ss. 36 and 37 of the Federal Courts Act, RSC 1985, c. F-7 ;

g) the costs of notice and of administering the plan of distribution of the recovery in this action, plus applicable taxes; and

h) such further and other relief as counsel may advise and this honourable Court may permit;

8. An order approving the litigation plan attached as Appendix B to this Amended Notice as setting out a workable method for:

a) advancing the proceeding on behalf of the Class; and

b) notifying Class Members as to how the proceeding is progressing; 9. An order enjoining Defendant to pay the costs related to the notification of Class Members as set out in the Litigation Plan appended hereto as Appendix B; 10. An order following which any Class Members who wish to opt-out of the Class Proceeding shall do so in writing by letter, email, or fax sent to the solicitors for Plaintiff within 30 days of the issuance of the Court’s Order [the Opt-Out Period]; 11.

An order enjoining Defendant to provide Plaintiff’s solicitors with a list of all Class Members the Defendant is capable of identifying, those Class Members’ contact information, and all information that may allow for the identification of Class Members or for the determination of the precise size of the Class, including the number of photographs in Clearview’s database that have EXIF metadata and/or copyright metadata associated with Canada, and the photographs associated with keywords locationally-related to Canada, the whole following the expiry of the Opt-Out Period; 12.

An order declaring that there shall be no costs associated with the Motion for Certification, the whole in accordance with s. 334.39 of the Rules ; 13. Such further and other relief as counsel may advise and this honourable Court may permit. C. Evidence adduced in this Motion for Certification [ 14 ] With her Amended Motion Record, Ms. Doan submitted: (1) the affidavit of Ms. Doan, sworn on October 20, 2021; (2) the affidavit of Ms. Doan, sworn on February 4, 2022; (3) the affidavit of Ms. Emy Bergevin, sworn on February 2, 2022; (4) the transcript of Mr.

Thomas Jackson Mulcaire, general counsel for Clearview’s cross-examination held on March 23, 2022. [ 15 ] Ms. Doan introduced, inter alia , the report from Clearview containing the photographs featuring her, her minor child and one or more unrelated Asian woman (Exhibit P-5) as well as authentic version of photographs numbers 1 to 5 and number 7 with properties (Exhibits P-8 to P-11). [ 16 ] In support of its Motion Record in response, Clearview submitted (1) the affidavit of Mr. Mulcaire, sworn January 21, 2022; (2) the transcript of Ms.

Doan’s cross-examination held on March 24, 2022 ; and (3) extracts of Parliamentary debates (Hansard) concerning the Copyright Act from May 14, 15, and June 15, 2012. D. Additional context: the Privacy Investigation against Clearview [ 17 ] On October 2019, the RCMP purchased some licenses to use Clearview.

RCMP members used Clearview via its licenses and a number of free trial accounts. [ 18 ] On February 21, 2020, the Office of the Privacy Commissioner of Canada [Privacy Commissioner] and three provincial counterparts, i.e., the Commission d’accès à l’information du Québec , the Information and Privacy Commissioner for British Columbia, and the Information and Privacy Commissioner of Alberta [the Offices], initiated a joint investigation into Clearview’s activities in Canada.

On February 2, 2021, the Offices issued their report in regards to Clearview’s activities, entitled, “ PIPEDA Findings #2021- 001” [ Investigation Report ] . In brief, the Investigation Report found that Clearview collected, used and disclosed personal information without the requisite consent and for an inappropriate purpose.

Accordingly, the Offices found that Clearview contravened the privacy legislations of these provinces and the Personal Information Protection and Electronic Documents Act , SC 2000, c 5 and they issued recommendations. [ 19 ] On February 28, 2020, the Privacy Commissioner initiated another investigation, this time into the RCMP’s use of facial recognition technology in Canada. On June 2021, the Privacy Commissioner submitted a Special Report to Parliament entitled, “Police Use of Facial recognition technology in Canada and the Way Forward” [Special Report].

The Privacy Commissioner concluded that the RCMP’s collection of personal information from Clearview was in contravention of

section 4 of the Privacy Act , RSC, 1985, c P-21 . The basis for this finding was that Clearview’s collection of personal information of Canadians was in contravention of the law.

The Special Report concluded that there were serious and systemic failings by the RCMP to ensure compliance with the Privacy Act before it collected information from Clearview and, more broadly, before novel collection of personal information in general. [ 20 ] In regards to Charter breach allegations by the RCMP, the Privacy Commissioner stated in its Special Report that: “While we are not making any conclusions as to the RCMP’s compliance with the Charter in using Clearview technology, in our view, it should have been clear to the RCMP that both the collection from a privately collected database, and the collection of information via facial recognition technology, warranted assessment from the RCMP for compliance with the Charter and common law principles” (Special Report, Plaintiff Motion Record at 108). [ 21 ] In July 2020, Clearview ceased all activities in Canada.

III. Issues [ 22 ] The only question at issue is whether this Court should certify the action as a class proceeding.

[ 23 ] This entails determining whether the applicant has shown the conditions set forth at Rule 334.16 (1) of the Rules have been met and whether: (1) the pleadings disclose a reasonable cause of action; and (2) the Plaintiff has established some basis in fact for all other requirements for certification ( Bruyea v Canada , 2022 FC 1409 at para 89 ). IV. General principles of certification [ 24 ]

Part 5.1 of the Rules sets out the framework for establishing and managing class proceedings before this Court. [ 25 ] During the certification stage, the Court must determine whether the five conditions of Rule 334.16(1) of the Rules are satisfied such that the action should be certified as a class proceeding ( Lin v Airbnb Inc , 2019 FC 1563 at para 21 [ Airbnb ] ; Rae v Canada (National Revenue) , 2015 FC 707 at para 50 [ Rae ] ; Paradis Honey Ltd. v Canada, 2017 FC 199 , [2018] 1 FCR 275 at para 5 [ Paradis Honey ] ). Hence, per Rule 334.16(1) the following conditions must be met:

a) the pleadings disclose a reasonable cause of action;

b) there is an identifiable class of two or more persons;

c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;

d) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and

e) there is an appropriate representative plaintiff. [ 26 ] The test is a conjunctive one and the Court shall certify a proceeding as a class proceeding if all five conditions of the test are satisfied ( Salna v Voltage Pictures, LLC , 2021 FCA 176 at para 27 (appealed at the SCC but not on the issue regarding rule 334.16 of the Rules – see Rogers Communications Inc. v Voltage Pictures, LLC , 2018 SCC 38 , [2018] 2 SCR 643; Difederico v Amazon.com, Inc., 2023 FC 1156 at para 20 ; Sivak v Canada , 2012 FC 271 at para 5 ). [ 27 ] A plaintiff who fails to meet any of the five listed conditions will see their motion for certification dismissed ( Samson Cree Nation v Samson Cree Nation (Chief and Council) , 2008 FC 1308 at para 35 [ Buffalo FC ] , aff’d in Buffalo v Samson Cree Nation , 2010 FCA 165 at para 3 [ Buffalo FCA ] ). [ 28 ] As the parties indicated, and as my colleague Justice Gascon outlined in Jensen v Samsung Electronics Co Ltd , 2021 FC 1185 at para 53 [ Jensen FC ] (aff’d in Jensen v Samsung Electronics Co Ltd , 2023 FCA 89 ), the certification conditions established in Rule 334.16(1) are akin to those applied by the courts in Ontario and British Columbia ( Canada (Attorney General) v Jost , 2020 FCA 212 at para 23 [ Jost ] ; Canada v John Doe , 2016 FCA 191 at para 22 [ John Doe ] ; Buffalo FCA at para 8 ; Airbnb at para 23 ).

I accept that it is thus not uncommon to see this Court and the Federal Court of Appeal refer to case law arising from these provinces in matters relating to class actions. [ 29 ] The procedural vehicle of class actions offers three important benefits over a duplication of individual litigations: (1) it allows for improved access to justice for those who might otherwise be unable to seek vindication of their rights through the traditional litigation process; (2) it enhances judicial economy, allowing a single proceeding to decide large numbers of claims involving similar issues; and (3) it encourages behaviour modification on behalf of the ones who caused harm and deters potential defendants who might otherwise assume that minor wrongs would not result in litigation ( Hollick v Toronto (City) , 2001 SCC 68 at para 15 [ Hollick ] , Western Canadian Shopping Centres Inc v Dutton , 2001 SCC 46 at paras 27-29 [ Dutton ] ; Vivendi Canada Inc v Dell’Aniello , 2014 SCC 1 at para 1 [ Vivendi ] ). [ 30 ] I am mindful that it is “essential […] that courts [do] not take an overly restrictive approach to the legislation, but rather interpret [class action legislation] in a way that gives full effect to the benefits foreseen by the drafters” and to the greater overarching purposes of this specific procedural mechanism ( Hollick at para 15 .

See also Dutton at paras 27-29 ; Condon v Canada , 2015 FCA 159 at para 10 [ Condon ] ). [ 31 ] The main purpose of a certification motion is to determine whether a class action is the appropriate procedural means for the action to proceed. As the Supreme Court of Canada noted in Hollick , the certification stage focuses on the form of the action, not on the substance and merits of the actual claim ( Hollick at para 16 . See also Vivendi at para 37 ; Infineon Technologies AG v Option consommateurs , 2013 SCC 59 at para 65 [ Infineon ] ).

It is well established that the onus on a party seeking certification is not an onerous one, and the threshold for certification has generally been described as low. [ 32 ] However, I also keep in mind the principles Justice Gascon highlighted at paragraph 60 of his decision in Jensen FC : That said, it is important to emphasize that, even though it is a low one, there is still a threshold to be met at the certification stage, and that certification will be denied when there is no viable cause of action or where there is an insufficient evidentiary basis for the facts on which the claims of the class members depend.

While a certification motion is not a merits- based screening intended to determine the actual viability or strength of the contemplated class action, it must nonetheless operate as a “meaningful screening device” (Pro-Sys at para 103). In Pro-Sys, the SCC expressly stated that the analysis into the sufficiency of the evidence under the some-basis-in-fact standard cannot be so superficial that it would “amount to nothing more than symbolic scrutiny” of the evidence (Pro-Sys at para 103).

There must be sufficient facts to satisfy the certification judge that the conditions for certification have been met “to a degree that should allow the matter to proceed on a class basis without foundering at the merits stage,” by reason of the requirements not having been met (Pro-Sys at para 104). More recently, in the context of motions for authorization brought under the Quebec class action regime and the application of the “arguable case” requirement under the Quebec legislation, the SCC repeatedly reaffirmed that the

authorization process “must not be reduced to ‘a mere formality” (Oratoire at para 62; Desjardins Financial Services FirmInc v Asselin, 2020 SCC 30 [Desjardins] at para 74). V. Rule 334.16(1)(b): Identifiable class of two or more persons A. The parties’ position [33] Ms.

Doan cites Brake v Canada (Attorney General), 2019 FCA 274 para 71 for the test that “[u]nder this branch of the certificationtest, all that is required is “some basis in fact” supporting an objective class definition that bears a rational connection to the commonissues and that is not dependent on the outcome of the litigation: Wenham at paragraph 69, citing Dutton at paragraph 38 and Hollick atparagraphs 19 and 25.” Ms. Doan adds that the Court recognized there will often be ambiguity around the size of the Class at thecertification stage (Salna v Voltage Pictures LLC, 2021 FCA 176 at para 97).

She also reminds the Court that Rule 334.18 specificallystates the judge shall not refuse to certify a proceeding as a class proceeding solely on the grounds that the precise number of ClassMembers or the identity of each class member is not known, which she asserts is the situation in this proceeding. [34] Ms. Doan submits that the Class and Subclasses are indeed identifiable, are composed of two or more persons, bear a rationalconnection to the common issues, and are not dependent on the outcome of the litigation.

She asserts that the courts have recognizeddefinition of classes similar to the one proposed here in the context of copyright cases (Thomson v Afterlife Network Inc., 2019 FC 545 atpara 10 [Afterlife]; Keatley Surveying Ltd. v Teranet Inc., 2015 ONCA 248 at paras 27-29; Robertson v The Thomson Corporation et al (ON SC), 1999 OJ no 280).

She adds that, contrary to Clearview’s argument, there is no requirement that membersof the Class be able to self-identify at the certification stage since the final determination of who is a member of the Class can be done ata later stage (Airbnb at para 110 citing Sun-Rype Products Ltd v Archer Daniel Midland Company, 2013 SCC 58 [Sun-Rype]) where thecompanies have confirmed the information sought could be found and the identity of the Class Members determined later with theinformation that exists, which may require further individual inquiries. [35] Ms.

Doan thus submits that this is the situation that prevails in this case whereby the Class Members may not be identifiable today,but will be at a later stage, stressing again Rule 334.18(

d) of the Rules. She submits that the Class definition will allow the members toknow if they are part of the Class, but that the actual identification can be determined later as well as the opt-out procedure (citing Airbnbitem 7 of the Order). Ms. Doan points to decisions that are akin to the situation she alleges is the present one where the information is inthe hands of the Defendant (Douez v Facebook Inc., 2014 BCSC 953 at paras 206 and 207 [Douez BCSC]; Gomel v Live NationEntertainment Inc., 2021 BCSC 699 at paras 128 et 129; Condon v Canada, 2014 FC 250 at paras 3, 84 and 89). [36] Ms.

Doan submits that the sizes of the Class and Subclasses are objectively determinable and can be objectively established basedon the exclusive knowledge and/or records of Clearview and statistically. Ms. Doan submits there is some basis in fact that Clearviewhas relevant data in its database to identify the Class Members.

She alleges that, for example, there is some basis in fact for twoidentification methods: (1) the capacity for Clearview to analyze metadata that is in its databases, metadata attached to the photographsthat travel with them; and (2) the possibility for each person to query Clearview for a report, as Ms. Doan has done, and for a person toquery about others. [37] In regards to the first method she proposes, Ms. Doan refers to geolocation (longitude and latitude) and copyright data on thephotographs. In regards to geolocation, Ms. Doan stresses that Mr.

Mulcaire confirmed that approximately 2% of the photographs in thedatabase contained geolocation metadata. She recognizes this is a small percentage, but stresses that it represents a very high number ofphotographs (Mulcaire’s cross-examination 59-13-61-26). In regards to the copyright data, Ms. Doan submits that it can be found inphotographs, as evidenced by Ms. Doan herself and by her photographs submitted into evidence (Ms. Doan’s affidavit exhibits P-8 to P-11). Ms.

Doan also highlights that there is some basis in fact that Clearview can analyze any metadata, including both the geolocationand the copyright data, and points to paragraph 10 of Mr. Mulcaire’s declaration in an Illinois case (Exhibit EB-9 referred to in theaffidavit of Emy Bergevin) where she asserts that he refers to “any” metadata. Ms. Doan adds that there is no evidence that Clearviewdoes not have the capacity to analyze the data necessary to identify the Class Members, even though Clearview does not actually analyzeit at the moment (Airbnb at para 106). [38] In regards to the second method, she proposes Ms.

Doan submits that people can use the traditional way of sending a request toClearview to obtain what is in its database for themselves and for other people, as Ms. Doan did for herself. She adds that Clearview’sinternal policies – that it does not respond to requests in Canada – should not be considered. She asserts that the fact Ms. Doan couldidentify herself as a Class Member is sufficient to establish some basis of fact. [39] Ms Doan also submits that two members are established by the declaration of Ms.

Doan that there is a Class and that the secondmember can be inferred by the Court given the nature of the proceeding (Bédard v Canada (Attorney General), 2007 FC 516 at para 100;Douez v Facebook Inc., 2018 BCCA 186 at para 53), and the number of websites crawled. She adds it is not necessary to demonstratethat a second person has a claim. Finally, she adds the Class should not be limited in time at this point, the judge on the merits can set thetime limit (Afterlife). [40] Clearview responds that Ms. Doan bore the burden to show some basis in fact there is an identifiable Class and that she has not mether burden.

Clearview submits that on the contrary the evidence shows the Class is not identifiable and that Ms.

Doan has not shownsome basis in fact that the Class Members can self-identify or that Clearview can identify them. [41] Clearview does not contest that the Class is based on factual criteria that are not dependent on the merits nor the fact that in theabstract, there probably are two or more people, but stresses it is just not possible to identify the members in this case. [42] Clearview asserts that although a representative plaintiff is not required to identify all Class Members at the certification stage,Class Members must at the very least be able to identify themselves and that the ability to self-identify is crucial to Class Members’capacity to exercise their right to opt-out of any certified class Dutton at para 38; Airbnb at para 92.

[ 43 ] Clearview adds that individuals have no way to self-identify to determine class membership as an individual who thinks they might be a member of the Class could not submit a photograph they have taken of themselves or of someone else to Clearview to determine whether that photograph is or was in the database at the relevant time as (1) it does not respond to access request from residents of jurisdictions where it has no operations, per Mr. Mulcaire’s testimony (Mulcaire’s affidavit para 38) ; and it no longer operates in Canada; and

(2) Clearview never permitted individuals to conduct searches of its database for images of people other than themselves unless they are a client (Mulcaire’s affidavit para 44). Clearview adds that, even if it could allow people to search and identity, it would transform the opt-out scheme of the class proceeding regime into an opt-in regime. [ 44 ] In addition, Clearview submits that it cannot identify the Class Members itself as alleged by Ms. Doan. It asserts that the evidence in the record demonstrates that it is not possible to identify Class Members based on the information in Clearview’s database.

Clearview outlines that based on the definition of the Class, two elements are crucial (1) who holds the right and (2) residence in Canada. Hence, Clearview asserts that in order to identify the Class Members it would to know (1) the copyright information; and (2) the place of residence for each photograph. [ 45 ] Clearview stresses Ms. Doan has not submitted a single piece of evidence that shows both these pieces of information on a photo.

It adds that there is an issue of jurisdiction as, assuming those two elements were known, Clearview would also need to be able to determine that the photographs were downloaded while it had commercial operations in Canada. [ 46 ] In addition, Clearview submits that even assuming the information exists in the photographs, Ms. Doan must also establish some basis in fact that Clearview collects and is able to analyze both or all three types of data.

It is not contested that Clearview collects and keeps track of location metadata, but that is not the case for copyright metadata (Mulcaire’s affidavit para 34; Mulcaire’s cross- examination page 62 lines 4-9 and page 63 lines 21-24). Clearview takes issue with Ms. Doan’s reliance on another Mulcaire declaration, filed, in a case in Illinois (Exhibit EB-9 referred to in the affidavit of Emy Bergevin) where Mr. Mulcaire affirms Clearview collects any metadata associated with the images (para 10). Clearview asserts that it is inappropriate for Ms. Doan to read in Mr.

Mulcaire’s declaration in another case when they had Mr. Mulcaire as a witness and did not question him on this, despite having filed this declaration before cross-examination him; she did not ask him if Clearview collects metadata nor did she ask him to clarify or explain what he meant. There is no indication that the metadata referred to in that declaration referred to copyright or authorship while Mr.

Mulcaire’s affidavit and affirmation in cross-examination confirm that Clearview has no means to determine if the images it crawls and download are covered by copyright protection and if so, based on which country’s laws. Mulcaire’s affidavit para 34; Mulcaire’s cross- examination page 62 lines 4-9 and page 63 lines 21-24). B. Discussion [ 47 ] As stated above, in order to succeed in her motion for certification, Ms. Doan must establish, among the other requirements, some basis in fact that there is an identifiable class of two or more persons, per Rule 334.16(1)(

b) of the Rules and Hollick at para 25 . [ 48 ] The Class definition proposed by Ms. Doan is found at paragraph 23 of her Re-re-re Amended Statement of Claim and reads as follows:

a) all natural persons, as defined below, who are the authors of the photographs collected by Clearview (the “Collected Photographs”) and who have not assigned or licensed their copyrights in the Collected Photographs to any persons, and all natural or legal persons, as defined below, to whom the authors of the Collected Photographs assigned or licensed their copyrights in the Collected Photographs (the “Copyright Infringement Class” or the “Copyright Infringement Class Members”);

b) all natural persons, as defined below, who are the authors of the Collected Photographs whether or not they have assigned or licensed their copyrights in the Collected Photographs (the “Moral Rights Class” or the “Moral Rights Class Members”) (together with the Copyright Infringement Class, the “Class” or “Class Members”); “Natural persons” means natural persons who are either residents or citizens of Canada. “Legal persons” means legal persons constituted under the laws of Canada or one of its provinces or territories or having a place of business in Canada; [ 49 ] In establishing an identifiable class, the Supreme Court of Canada identified the existence of three elements to be met: (1) the class must be defined by objective criteria; (2) the class must be defined without reference to the merits of the action; and (3) there must be a rational connection between the common issues and the proposed class definition ( Hollick at paras 17-20 ; Paradis Honey at paras 23- 24 ).

The burden is on the proposed representative plaintiff to show that the Class is defined sufficiently narrowly so as to meet these elements ( Hollick at para 20 ). [ 50 ] There are three justifications for requiring a class proceeding to be certified only with an identifiable class: (1) to identify persons who have a potential claim for relief against the defendants; (2) to define the parameters of the lawsuit in order to identify those who are bound by the result; and (3) to describe who is entitled to notice for certification ( Dutton at para 38 ; Sun-Rype at para 57 ; Airbnb at para 92 ). [ 51 ] As the Supreme Court of Canada indicated in Sun-Rype , Clearview’s challenge to the identifiable Class requirement is not a typical one, and the difficulty lies here in that there is insufficient evidence to show some basis in fact that Clearview can identify them or that they can self-identify. [ 52 ] As a preliminary note, I agree with Ms.

Doan that there is no need to actually identify all the Class Members at the certification stage or for the potential Class Members to be able to self-identify at time of certification. I also agree with Ms. Doan that difficulty or inconvenience imposed on the Defendant to find or retrieve the relevant information and data, when it can do so, is not an obstacle as the Court found namely in Airbnb at para 106 and Douez BCSC at para 206 .

[53] As recognized by the Courts on many occasions, it is not necessary to determine precisely the number and the identity of ClassMembers, so long as the definition of the Class allows an objective determination of whether or not any given individual is within theClass: Robertson v Thomson Corp. (1999), (ON SC), 43 O.R. (3d) 161 (Gen. Div.) at p. 169; Boulanger v Johnson &Johnson Corp., [2007] O.J. No. 179 (S.C.J.) at para 17, leave to appeal ref’d [2007] O.J. No. 1991 (S.C.J.).

Rule 334.18 specificallystates the judge shall not refuse to certify a proceeding as a class proceeding solely on the grounds that the precise number of classmembers or the identity of each class member is not known, which she asserts is the situation in this proceeding. [54] However, this is not the situation in these proceedings.

In the present situation, and in light of the record, “there is insufficientevidence to show some basis in fact that two or more persons will be able to determine if they are in fact a member of the class” (Sun-Rype at para 58, Douez BCSC at para 204) or that Clearview can identify them. [55] Each of the two methods advanced by Ms. Doan for the proposition that the Class Members can be identified, now or later, presentsfatal flaws. [56] First Ms.

Doan has not shown some basis in fact that Clearview either possesses or can in fact analyze the relevant metadata. [57] I agree with Clearview that, given the proposed Class definition, Clearview would need to know two elements of the CollectedPhotographs in order to identify the Class Members, hence the copyright data and the location data. However, the record shows that; • There is no evidence of any photographs that do contain both these elements. Attached to the affidavit she swore on February 4, 2022,Ms.

Doan has adduced photographs that contain copyright information but no location information; and one photograph that has GPSinformation, but no copyright information; • There is no evidence that Class Members have photos that show both elements; • Ms. Doan took steps to include the authorship and copyright information (Ms. Doan’s cross-examination page 38) and there is noevidence as to whether Class Members took similar steps; • Ms. Doan does not know if it is possible to include the copyright data on photographs taken with a cellular phone (Ms. Doan’s cross-examination page 39); • One of the photographs Ms.

Doan adduced that shows data of copyright information has in fact incorrect information; in cross-examination, she testified she was not the author of a photograph that bears information that she is the author (exhibit P-11) (Ms. Doan’scross-examination page 41); • Clearview does not store copyright information associated with the images it downloads and Mr.

Mulcaire confirmed he did not think itwas possible for a search engine to determine whether the images it crawls are covered by copyright (Mulcaire’s cross-examinationpages 62-63); • The uncontested evidence reveals that approximately 2% of the photographs in Clearview’s database have the metadata associated withgeolocation (Mr. Mulcaire’s cross-examination page 59).

This means that no more than a maximum of approximately 2% of thephotographs could contain both the geolocation and the copyright data, even assuming 100% of the photographs would contain thecopyright data; • The evidence demonstrates that it is not possible to identify Class Members based on information in Clearview’s database; • Ms. Doan’s reliance on Mr. Mulcaire’s declaration in the Illinois case in the United States is inappropriate because despite hisdeclaration having been filed by Ms. Doan before Mr. Mulcaire’s cross-examination, no question was put to him in relation to thisdeclaration.

While we don’t know precisely the type of data he is referring to, the context indicates he is referring to geolocation dataand not to copyright data; [58] The situation here is distinguishable from the one that prevailed in Airbnb and in Douez BCSC. In those decisions, the Courtsconfirmed it was possible, although difficult or troublesome, for the defendants to provide the relevant information that would identifythe Class Members. There is here no basis in fact showing that Clearview has, can find or can provide the relevant data in this case. Onthe contrary, the evidence shows it cannot.

Given this conclusion, I do not need to examine the jurisdictional issue raised by Clearview. [59] Second, Ms. Doan’s suggestion that people could query Clearview for a report on themselves, or on somebody, to find out if theyare a member of the Class is unsustainable. [60] Clearview does not allow people to search for third parties and I am confident Ms.

Doan understands the issues that could arise ifClearview allowed it. [61] Furthermore, even assuming Clearview would or could respond to queries from Canada or that the Court could force Clearview torespond to queries from Canada, the process she suggests would transform the opt-out class action scheme into an opt-in scheme, whichis unacceptable. [62] It is not contested that the Federal Court’s class proceeding jurisdiction is an opt-out one, in that people who do not wish to be partof a certified class proceeding and be bound by its results must take active steps to opt-out of the proceeding (see Rules 334.17(1)

f) and334.21 of the Rules). The opportunity to opt-out is an important procedural protection afforded to putative Class Members who canremove themselves from the action to preserve legal rights that would otherwise be determined or compromised in the class proceeding(Currie v McDonald’s restaurants of Canada Ltd. (2005), (ON CA), 74 OR (3d) 321 (CA) at para 28).

The Court willnot approve a procedure that would convert the opt-out process to one requiring a member to opt-in before obtaining the benefit of theclass proceedings: Durling v Sunrise Propane Energy Group Inc., 2011 ONSC 7506 at paras 41 and 42; Lambert v Guidant Corp., (ON SC), [2009] O.J. No. 1910 (S.C.J.) at para 117; Ramdath v George Brown College of Applied Arts and Technology,

2010 ONSC 2019 (S.C.J.), at para 150 ; Silver v IMAX Corp., 2013 ONSC 1667 at para 70 . [ 63 ] Its seems obvious to point out that people must be able to determine if they are in in order to decide whether to opt-out. In the process Ms. Doan suggests, people would be required to query Clearview to determine if they are in, as they cannot self-identify based on the Class definition ( Sun-Rype at para 67 ).

Only those who do follow this process, assuming again it is available, could be identified as Class Members; this transform the scheme into an opt in one, before Class Members can actually opt-out. [ 64 ] I agree with Clearview that it is not to say the Class does not exist in the abstract, the problem is that Ms. Doan has not established some basis in fact that we know, or can find out, now or later who its members are. VI. Conclusion [ 65 ] Since Ms. Doan has failed to establish some basis in fact that there is an identifiable class of two or more persons, the Motion for certification cannot be granted.

ORDER THIS COURT’S ORDER is that : 1 . The Motion for certification is denied. 2 . No costs are awarded. "Martine St-Louis" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: t-713-20 STYLE OF CAUSE: Ha Vi DOAN v CLEARVIEW INC. PLACE OF HEARING: MONTRéAL, QC DATE OF HEARING: DECEMBER 12, 2022 JUDGMENT AND REASONS: ST-LOUIS J. DATED: November 30, 2023 APPEARANCES : Lev Alexeev Molly Krishtalka Élise Veilette For The PLAINTIFF

Doug Mitchell Olga Redko Mathilde Couture For The DEFENDANT SOLICITORS OF RECORD : NOVALEX LAW FIRM INC. Montréal, Quebec For The PLAINTIFF IMK LLP Montréal, Quebec For The DEFENDANT