HA VI DOAN Applicant/Plaintiff v. HIS MAJESTY THE KING, 2023 FC 968

Date: 20230718 Docket: T-724-20 Citation: 2023 FC 968 Ottawa, Ontario, July 18, 2023 PRESENT: Madam Justice St-Louis PROPOSED CLASS PROCEEDING BETWEEN: HA VI DOAN Applicant/Plaintiff and HIS MAJESTY THE KING Respondent/Defendant ORDER AND REASONS I. Overview [ 1 ] On August 27, 2021, Ms. Doan filed a Motion to certify an action as a class proceeding and for her appointment as Class Representative [Motion for certification] under

part 5.1 of the Federal Courts Rules , SOR/98-106 [ Rules ] . Ms. Doan’s Motion for certification relates to the action she initiated against Canada, as a class proceeding, in connection with the Royal Canadian Mounted Police [RCMP]’s involvement with Clearview AI Inc. [Clearview], a United-States based corporation that provides facial recognition and identification services using a facial recognition technology. [ 2 ] Ms.

Doan asserts that the conditions for certification set forth in Rule 334.16(1) of the Rules are met as: (1) her pleadings disclose a reasonable cause of action; (2) the Class and Subclasses are identifiable and are composed of two or more persons; (3) the claims of the Class Members raise common questions of law or fact; (4) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions; and (5) she is an appropriate Class Representative. [ 3 ] In response to the Motion for certification, His Majesty the King [Canada] submits that none of the conditions required for certification are met.

Canada first stresses out that Ms. Doan does not plead any material fact that Canada looked for, saw, or copied some information related to her, and that it is therefore illusory to speak of violations of her rights or of causation. [ 4 ] Canada thus responds that (1) it is plain and obvious Ms. Doan’s pleadings do not disclose a reasonable cause of action; (2) some statements Ms.

Doan swore in her affidavit must be given no weight and the third-party reports adduced in exhibits are not admissible for the truth of their contents; (3) the Class is overbroad, not rationally connected to the claims and is not identifiable; (4) the proposed common questions are overbroad and no evidence supports them; (5) a class proceeding is not appropriate as individual issues would predominate and alternative measures to a class proceeding could resolve Ms. Doan’s claims; and

(6) Ms. Doan cannot represent a Class where she has no reasonable personal cause of action against Canada. [ 5 ] In her underlying action, Ms. Doan claims that Clearview collects, copies, stores, uses, discloses, and sells personal biometric information, including facial photographs of residents and citizens of Canada [the Collected Photographs], without their knowledge or consent. She also claims that Clearview developed an algorithm allowing it to extract the biometric information contained in these Collected Photographs of human faces, effectively creating a unique " “face print” " for virtually every individual whose photograph(

s) appears on the internet. [ 6 ] Ms. Doan then essentially claims that by becoming a client of Clearview, the RCMP itself, as an agent of the federal Crown, willfully obtained access to and used Clearview’s illicit database without assessing whether the tool was legal, thus, generally engaging its liability on the grounds of negligence and invasion of privacy and more particularly by: 1) violating

section 8 of the Canadian Charter of Rights and Freedoms , the Constitution Act , 1982,

Schedule B to the Canada Act 1982 (UK) 1982, ch. 11 [the Charter ] ; 2) engaging vicarious liability of the Crown under the Crown Liability and Proceedings Act , RSC 1985, c C- 50 [ Crown Liability Act ] under (

a) common law torts of negligence (

b) intrusion upon seclusion, and where the actions of the RCMP took place in Québec, for civil liability under (

c) article 1457 of the Civil Code of Québec , SQ 1991, c 64 [ Civil Code ]; and (

d) section 49 of the Charter of Rights and Freedoms , RSQ, c C-12 [ Québec Charter ]; and 3) committing copyright infringement and moral rights violations under the Copyright Act , RSC, 1985, c C-42 . [ 7 ] Ms. Doan proposes one Class that includes two Subclasses, hence the Privacy Breach Class and the Copyright Infringement Class, described as follows in her Re-Re-Amended Statement of Claim: All natural persons, who are either residents or citizens of Canada, whose faces appear in the photographs collected by Clearview Inc. through July 6, 2020 (the “Collected Photographs”) (the “Privacy Breach Class” or the “Privacy Breach Class Members”);

All natural or legal persons holding copyright and moral rights with respect to the Collected Photographs (the “Copyright Infringement Class” or the “Copyright Infringement Class Members” and, collectively with the Privacy Breach Class, the “Class” or “Class Members”). [ 8 ] In her underlying action, Ms.

Doan, on her own behalf and on behalf of Class Members, seeks an award in damages, including punitive damages, declaratory reliefs against the RCMP, as well as an order enjoining the RCMP to remit to the Privacy Breach Class Members all the documents and information obtained with respect to them and destroy all copies. [ 9 ] For the reasons that follow, I will dismiss Ms. Doan’s Motion for certification.

In brief, I find that the conditions set forth in Rule 334.16(1) are not met in that (1) it is plain and obvious that the pleadings, assuming the facts pleaded to be true, disclose no reasonable cause of action; (2) the open-ended leave to amend sought by Ms. Doan is not appropriate in the circumstances and will thus not be granted; and

(3) Ms. Doan has not established some basis in fact to meet all the other conditions of Rule 334.16 (1) . [ 10 ] As all the conditions of Rule 334.16(1) must be met in order for a class proceeding to be certified, and since I found none of the conditions are met, the Motion for certification cannot be granted. II. Context [ 11 ] Ms. Doan is a resident of Montréal, Québec and a photographer. It is not disputed that she posts a large number of photographs that she has taken of herself, of her family, and of her clients on various public internet and social media sites for commercial purposes.

Her clients also post photos she has taken of them online for commercial purposes. [ 12 ] In October 2019, the RCMP purchased some licenses to use Clearview.

RCMP members used Clearview via its licenses and a number of free trial accounts. [ 13 ] 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. [ 14 ] 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. [ 15 ] 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). [ 16 ] The Privacy Commissioner recommended that, within 12 months, the RCMP institute systemic measures and pertinent training to understand, track, identify, assess, and control the novel collection of personal information to ensure collection is limited as required by the Privacy Act . [ 17 ] In July 2020, Clearview ceased all activities in Canada. [ 18 ] On July 8, 2020, Ms.

Doan instituted her action against Canada, as a class proceeding, and on August 27, 2021, Ms. Doan filed her Motion for certification and for her appointment as Class Representative. She provided proposed common questions of law and/or fact (Appendix A), a litigation plan for the proceeding (Appendix B), and an agreement respecting fees and disbursements between the Plaintiff and Class Counsel (Appendix C). [ 19 ] With her Motion Record, Ms. Doan submitted her own affidavit, sworn on August 27, 2021, introducing 12 exhibits. In her affidavit, Ms.

Doan affirms that, as the Plaintiff in this proposed class proceeding, she has personal knowledge of the matters on which she deposes. Notably, Ms. Doan attached to her affidavit two documents marked respectively as Exhibits 10 and 11. Exhibit 10 shows the results of an inquiry with Clearview in the form of seven distinct identified photographs of Ms. Doan, her minor child, and one or more unrelated Asian women. Most of these photographs appear to be from her public " “Vivian Doan Photography” " Instagram account, while others are from her public Twitter account, her commercial website, and two unrelated sources.

Exhibit 11 contains results of the inquiry with Clearview in the form of photographs taken by Ms. Doan of another individual. [ 20 ] On January 20, 2022, Canada cross-examined Ms. Doan. The transcript revealed that upon cross-examination, Ms. Doan indicated that many paragraphs of her affidavit were based on unspecified media sources and she would have to consult her counsel in order to explain how she knew them to be true, and appeared unfamiliar with some exhibits. She confirmed having never herself used Clearview’s services.

[ 21 ] In response, Canada submitted affidavits sworn by:

(1) Ms. Isabelle Nicolas, paralegal for Justice Canada, sworn on October 25, 2021, introducing three exhibits relating to other proceedings;

(2) Mr. Justin Ducette, acting manager of Policy and Governance for the RCMP Technical Operations Strategic Branch, sworn on October 25, 2021, and testifying essentially as to the extend of the RCMP’s use of Clearview; and

(3) Arnold Guerin, Cybercrime program Officer for the United Nations Office on Drugs and Crime, sworn on October 25, 2021. Mr. Guerin previously held a position in the RCMP’s National Child Exploitation Crime Centre and testified on the use of Clearview in that regard. [ 22 ] Notably, Mr. Guerin affirmed, having executed searches with Clearview’s database, that the user would upload a picture, the tool would perform the search and the results appeared as headshots and provided links to where the match was on the internet. Mr.

Guerin affirmed that these headshots and links were the only output that the user received. The user would click on the link, the user’s web browser would launch and open the URL to the public internet page where the image was found (Guerin affidavit at paras 10, 11, 13). [ 23 ] Canada’s affiants were not cross-examined. [ 24 ] On the morning of the Motion for certification’s hearing, Ms. Doan filed a Re-Re-Amended Statement of Claim and revised common questions.

Canada took no position in regards to the Re-Re-Amended Statement of Claim and it was accepted for filing. [ 25 ] In her Re-Re-Amended Statement of Claim, Ms. Doan asks the Court to certify the aforementioned Class that includes two Subclasses, hence the Privacy Breach Class and the Copyright Infringement Class. [ 26 ] Ms. Doan, on her own behalf and on behalf of the Class Members, seeks the following remedies from the Court:

a) an order certifying this action as a class proceeding and appointing her as the representative plaintiff under the Federal Courts Rules , SOR/98-106 ;

b) a declaration that the RCMP engaged its liability and violated the rights of the Class Members by becoming a client of Clearview and willfully obtaining access to its database, and by running searches in Clearview’s database; c) […];

d) a declaration that the RCMP cannot engage with Clearview and use its services […];

e) an order enjoining the RCMP to remit to the […] Privacy Breach Class Members of all the documents and information obtained from Clearview with respect to them (the “Illegally Obtained Documentation and Information”) and destroy all copies of […] the Illegally Obtained Documentation and Information;

f) general pecuniary and non-pecuniary, special, punitive and/or statutory damages for negligence, willfully obtaining access to an illicit database, […] copyright infringement and moral rights violations;

g) general pecuniary, non-pecuniary, punitive and/or aggravated damages for privacy breaches, including invasion of privacy (commission of the tort of intrusion upon seclusion), and including under s. 49 of the Charter of Human Rights and Freedoms , CQLR c C-12 (the “ Quebec Charter ”);

h) damages pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms , the Constitution Act, 1982,

Schedule B to the Canada Act 1982 (UK), 1982, c 11 ;

i) an order for aggregate assessment of damages owed to the Privacy Breach Class Members and to the Copyright Infringement Class Members;

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

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

l) such further and other relief as this Honourable Court deems just. III. Order sought on this Motion for certification [ 27 ] In her Motion for certification, Ms. Doan seeks the following orders from the Court: 1 . An order seeking certification of this proposed class proceeding (the “Proposed Class Proceeding”) as a class proceeding pursuant to s. 334.15 and ff. of the Rules ; 2 . An order defining the class (the “Class” or “Class Members”) […] 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 Defendant as follows:

a) claims in negligence, moral rights violations, privacy rights violations (including intrusion upon seclusion), and secondary infringement against the RCMP for retaining the services of Clearview, and for wilfully obtaining access to Clearview’s database containing personal biometric information and copyrighted materials, including the Collected Photographs, which were/are collected, copied, stored, used, disclosed and sold in violation of the rights of the Class Members;

b) claims in negligence, moral rights violations, privacy rights violations (including intrusion upon seclusion), and secondary infringement against the RCMP for retaining the services of Clearview and for wilfully obtaining access to its database prior to assessing whether the tools offered by Clearview were appropriate and legitimate, and whether Clearview disclosed its

activities and the creation and the existence of its database, containing personal biometric information and copyrighted materials, to competent authorities;

c) claims in violations of the constitutional right not to be subject to unreasonable search and seizure; 5 . An order setting out the questions contained in Appendix A to this Notice of Motion (the “Notice” or “NOM”) 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 the RCMP engaged its liability and violated the rights of the Class Members by retaining the services of Clearview, by wilfully obtaining access to Clearview’s database, and by running searches in Clearview’s database;

b) a declaration that the RCMP cannot engage with Clearview and use its services;

c) an order enjoining the RCMP to remit to the Privacy Breach Class Members all the documents and information it obtained from Clearview with respect to them (the “Illegally Obtained Documentation and Information”);

d) an order enjoining the RCMP to destroy all copies of the Illegally Obtained Documentation and Information;

e) general pecuniary and non-pecuniary, special, punitive and/or statutory damages, including under s. 49 of the Charter of Human Rights and Freedoms , CQLR c C-12 [ Quebec Charter ], against the RCMP for: i. negligence; ii. having willfully obtained access to an inappropriate and illegitimate database; iii. privacy breaches, including commission of the tort of intrusion upon seclusion; iv. copyright infringement; and v. moral rights violations;

f) damages pursuant to s. 24(1) of the Charter ;

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

h) an order for aggregate assessment of damages owed to the Privacy Breach Class Members;

i) an order for aggregate assessment of damages owed to the Copyright Infringement Class Members;

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

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

l) 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 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 thirty (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 and those Class Members’ contact information 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. IV. General principles for certification [ 28 ]

Part 5.1 of the Rules sets out the framework for establishing and managing class proceedings before this Court. [ 29 ] During the certification stage, the Court must determine whether the five conditions of Rule 334.16(1) 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 (Attorney General) , 2015 FCA 89 at para 5 [ Paradis Honey FCA ] ). 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. [ 30 ] 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 ( Sivak v Canada , 2012 FC 271 at para 5 ).

A plaintiff who fails to meet any of the five listed conditions will see their motion 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 ]). [ 31 ] As the parties indicated, and as my colleague Justice Gascon outlined in Jensen v Samsung Electronics Co Ltd , 2021 FC 1185 [ 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. [ 32 ] 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 ]). [ 33 ] 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 ]). [ 34 ] 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. [ 35 ] 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 t hat 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 Firm Inc v Asselin , 2020 SCC 30 [ Desjardins ] at para 74 ). [ 36 ] With these principles in mind, I will now examine if the conditions set out by the Rules are met. V. Rule 334.16(1)(a): reasonable cause of action A. Introduction [ 37 ] Ms.

Doan raises the following seven categories of causes of action in her Memorandum of Fact and Law: (1) breach of

section 8 of the Charter ; (2) negligent violations of privacy rights under Québec law, namely the Civil Code and the Québec Charter ; (3) tort of intrusion upon seclusion; (4) negligence at common law; (5) copyright infringement under the Copyright Act ; (6) moral rights violations under the Copyright Act ; and (7) vicarious liability of the Crown. Alternatively, should the Court require additional particulars to establish the reasonable cause of action, Ms.

Doan submits that it should grant her leave to amend, per Paradis Honey FCA at paragraph 80. [ 38 ] For what I hope provides greater clarity, I have organised the causes of action and arguments raised by Ms. Doan under the following headings: (1) breach of

section 8 of the Charter ;

(2) Crown liability causes of actions; (3) causes of action under the Copyright

Act; and (4) leave to amend. [39] I will first outline the test I must apply when assessing whether the pleadings disclose a reasonable cause of action per Rule334.16(1)(

a) and I will subsequently assess the causes of action raised by Ms. Doan against this test. B. Legal test: Reasonable cause of action [40] For the purposes of this first condition, set forth in Rule 334.16(1)(a), that the pleadings disclose a reasonable cause of action, thetest is the same as the one applicable on a motion to strike a pleading in the context of an action (Rule 221 of the Rules). The test iswhether it is "“plain and obvious”" that the pleadings, assuming the facts pleaded to be true, disclose no reasonable cause of action.

Thisis an onerous test and the novelty of the claim will not, of itself, necessarily result in a claim being found to disclose no reasonable causeof action (Canada v Greenwood, 2021 FCA 186 at para 144 [Greenwood]). [41] Alternatively, to put it differently, the plaintiff must establish that there is a reasonable prospect of success should the claim bepermitted to proceed towards trial (Hollick at para 25; Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 at para 63 [Pro-Sys]; Hunt v Carey Canada Inc, (SCC), [1990] 2 SCR 959 at 980; R v Imperial Tobacco Canada Ltd, 2011 SCC 42 atparas 17, 70 [Imperial Tobacco]; John Doe at para 23).

To do so, the plaintiff may rely only upon the statement of claim.

Facts andarguments raised in the motion record, including documents submitted as evidence, are irrelevant to this condition (Greenwood at paras90-93). [42] Courts have consistently affirmed that to disclose a reasonable cause of action, a claim must show the following three elements(Bérubé v Canada, 2009 FC 43 at para 24, aff’d in Bérubé v Canada, 2010 FCA 276; Oleynik v Canada (Attorney General), 2014 FC896 at para 5; Zbarsky v Canada, 2022 FC 195 at para 13): a)it must allege facts that are capable of giving rise to a cause of action (the requirement of Rule 174 of the Rules); b)it must disclose the nature of the action which is to be founded on those facts; and c)it must indicate the relief sought, which must be of a type that the action could produce and that the Court has jurisdiction togrant. [43] At this stage, the threshold is quite low, as the right of action must be protected (Manuge v Canada (FC), 2008 FC 624 at para 38;Canada (Royal Mounted Police) v Canada (Attorney General), 2015 FC 1372 at para 17). [44] However, a low threshold does not mean no threshold. [45] The Federal Court of Appeal recently articulated the test as follows in Canada (Attorney General) v Nasogaluak, 2023 FCA 61: [18] The first certification condition, that the pleadings disclose a reasonable cause of action, is assessed on the samestandard that applies on a motion to strike out a pleading.

Thus, the question is whether it is plain and obvious, assuming thefacts pleaded to be true (unless they are manifestly incapable of being proven), that the pleaded claims have no reasonableprospect of success: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at para. 14; Canada v. Greenwood, 2021 FCA186 at para. 91, leave to appeal to S.C.C. refused, 39885 (March 17, 2022). A claim that has no reasonable prospect ofsuccess will not satisfy the first condition. [19] No evidence is admissible on this issue.

However, the pleading must be read generously, and as it might reasonably beamended to accommodate inadequacies attributable to drafting. Moreover, recognizing that the law is not static, the motionjudge must err on the side of permitting a novel but arguable claim to proceed to trial: R. v. Imperial Tobacco Canada Ltd.,2011 SCC 42 at paras. 19-25.

This Court has described as “onerous” the burden resting on a defendant seeking to defeat acertification motion on the basis that no reasonable cause of action is pleaded: Greenwood at para. 144. [46] The statement of claim must plead, in a concise, clear manner, material facts satisfying all the constituent elements of each allegedcause of action with sufficient particularity.

The pleading must tell the defendant who, when, where, how and what gave rise to itsliability. [47] Notably, Rule 174 of the Rules requires that "“[e]very pleading shall contain a concise statement of the material facts on which theparty relies, but shall not include evidence by which those facts are to be proved”". The Federal Court of Appeal held that, if it were notfor Rule 174, "“parties would be able to make the broadest, most sweeping allegations without evidence and embark upon a fishingexpedition”" (Merchant Law Group v Canada Revenue Agency, 2010 FCA 184 at para 34 [Merchant].

See also Painblanc v Kastner(1994), 58 CPR (3d) 502 at para 4). [48] There is no relaxed rule of pleading for class actions (Merchant at para 40). Hence, as the Federal Court of Appeal outlined inMancuso v Canada (National Health and Welfare), 2015 FCA 227 at paragraphs 16 to 20 [Mancuso], it is fundamental to the trialprocess that a plaintiff plead material facts in sufficient detail to support the claim and relief sought; sufficient material facts is thefoundation of a proper pleading.

Notably, the Federal Court of Appeal added that what constitutes a material fact is determined in light ofthe cause of action and the damages sought to be recovered.

In order for allegations to be considered as material facts – and thus assumedto be true – "“they must be supported by sufficient particularization, and must not be bare assertions or conclusory legal statements basedon assumptions or speculation”" (Jensen FC at para 79). [49] The Federal Court of Appeal also stated that, while the contours of what constitutes material facts are assessed by the motion judgein light of the causes of action pleaded and the damages sought, the requirement for adequate material facts to be pleaded is mandatory. [50] Only material facts are assumed to be true.

The following are not material facts (and are not assumed to be true): bare assertions;

speculation; assumptions; allegations that are scandalous, frivolous or vexatious; allegations that are argumentative or inserted only forcolour; legal submissions or conclusions of law.

The Court does not accept as true or give weight to allegations that "“are inconsistentwith common sense, the documents incorporated by reference, or incontrovertible evidence proffered by both sides for the purpose of themotions”" (Jensen FC at para 82, citing Das v George Weston Limited, 2017 ONSC 4129 at para 27, aff’d in Das v George WestonLimited, 2018 ONCA 1053 at para 74). [51] Courts have confirmed, and this is particularly relevant to these proceedings, that although the statement of claim must be read asgenerously as possible to accommodate any deficiencies due to drafting defects, it is incumbent upon the plaintiff to clearly plead thefacts underlying its claim (Pelletier v Canada, 2016 FC 1356 at para 7; Operation Dismantle v The Queen, (SCC),[1985] 1 SCR 441 at 451).

A plaintiff is not entitled to rely on the possibility that new facts may turn up as the case progresses; the factspleaded are instead the firm basis upon which the possibility of success of the claim must be evaluated by the Court (Jensen FC at para71; Imperial Tobacco at para 22). [52] It is also important to note that the conditions for certification, including the sufficiency of the alleged facts, must be interpretedflexibly.

However, the Court cannot go so far as to presume the existence of an element that is essential to the establishment of a cause ofaction (Jensen FC at para 76). [53] It is with these principles in mind that I must examine the causes of action Ms. Doan raised and the material facts she pleaded in herRe-Re-Amended Statement of Claim. In essence, and as described below, I find that Ms. Doan has failed to plead material facts for theconstituent elements of each cause of action or legal ground raised, and that her pleadings therefore do not disclose a reasonable cause ofaction. C. Ms.

Doan’s pleadings [54] In light of the principles highlighted above, it is useful to commence with a review of Ms. Doan’s pleadings, found in her Re-Re-Amended Statement of Claim. I note that, as is often the case in class proceedings, Canada chose to refrain from filing a defence prior tothe disposition of the Motion for certification. [55] Ms. Doan’s Re-Re-Amended Statement of Claim contains 62 paragraphs. It is divided in the following ten sections (1) an overview(paras 1-6), describing namely the allegation of fault committed by the RCMP (para 5); (2) the Plaintiff’s and Class Members’ claim(para 7);

(3) Clearview’s operations (paras 8-19); (4) the RCMP’s involvement with Clearview and use of its services, including detailsabout the Privacy Commissioner’s reports (paras 20-38.3); (5) a description of the Plaintiff (paras 39-45); (6) the description of the Class(paras 46-50); (7) the causes of action against the Crown, which are separated in two categories: (

a) negligence, partaking in illegalactivities and wilfully obtaining access to an illicit database; and (

b) invasion of privacy (paras 51-58.1); (8) the remedies sought (paras59-60); (9) the statutes Ms. Doan relies on (para 61); and (10) the location of trial (para 62). [56] Ms. Doan’s Re-Re-Amended Statement of Claim contains a number of paragraphs referring to the two investigation reports from thePrivacy Commissioner and various press releases. While counsel for Ms. Doan initially asserted, these had to be considered as materialfacts and they were incorporated in the Statement of Claim by reference, they later confirmed unequivocally they were not to beconsidered as such.

I agree and will therefore not consider the reports, or the information they contain, as material facts. The Courtcannot incorporate reports by reference, and legal conclusions in the reports are not material facts (Jensen FC at para 82; Bigeagle vCanada, 2021 FC 504 at paras 46-47 [Bigeagle FC] aff’d in Bigeagle v Canada, 2023 FCA 128 at paras 44, 46 [Bigeagle FCA]). TheCourt cannot either "“fill in the gaps”" of the Statement of Claim with the evidence, as suggested by Ms. Doan at the hearing, as noevidence is examined at this stage. [57] I note, as Canada did, that very few facts are alleged in Ms.

Doan’s Re-Re-Amended Statement of Claim and a number do not evenconcern the RCMP, but concern Clearview’s operations or activities. What can generally relate to the RCMP are: • 5. The Royal Canadian Mounted Police (the “RCMP”), as agent of the federal Crown, became a client of Clearview. By so doing, theRCMP wilfully obtained access to and used an illicit database. • 20. […] the RCMP eagerly partook in these illegal activities by becoming a client of Clearview, by wilfully obtaining access to itsdatabase and by using its services. • 35.

As Canada's national law enforcement agency, the RCMP operates all over Canada with national, federal, provincial, and municipalpolicing mandates. By becoming a paying client of Clearview, by wilfully obtaining access to Clearview’s database and by using itsservices, the RCMP was partaking in illegal activities. • 38.3. It is clear that the RCMP repeatedly misled the OPCC, and thus by extension the Canadian public, over the course of the RCMP-Clearview Investigation. • 45. Irrespective of whether the RCMP actually used Clearview’s services with respect to Ms.

Doan or to the Doan Photographs, the factof being a Clearview client and having wilfully obtained access to services the provision of which involves the invasion of privacy ofresidents and citizens of Canada and the violation of their intellectual property rights on a systematic basis, engages RCMP’s liability.[my emphasis] [58] Notably as well is the fact that Ms. Doan pleaded no material fact that the RCMP looked for or saw (let alone copied or kept) anyinformation that relates to her. In fact, as outlined above, Ms.

Doan actually alleges that it does not matter if the RCMP used Clearview’sservices with respect to her or to the photographs she has taken and she thus does not allege that the RCMP actually saw, or copied, evena single photograph of her or taken by her in Clearview’s database. Her case is premised on the notion that this fact does not matter. [59] Furthermore, Ms. Doan’s description of the database query process appears speculative, as she herself has never used Clearview’sdatabase, and is contradicted by clear evidence submitted by both parties (Jensen FC at paras 82, 86). In particular, her Re-Re-Amended

Statement of Claim at paragraph 16(

c) states that "“Clearview instantly generates and provides its client with a file containing virtuallyall the photographs of the individual appearing in the Query Photo available or formerly available on the Internet, along with all theinformation accompanying these photographs, such as, often, the individual’s name, location, circle of friends, family, etc.”" However,the incontrovertible evidence proffered by both sides shows that the search results into Clearview only generates head shots and links tothe public internet page where the image was found. [60] The Re-Re-Amended Statement of Claim further does not distinguish between the different causes of action; this added to thecomplexity of the analysis.

D. Breach of

section 8 of the Charter

(1) Parties’ position [61] Ms. Doan initially argued, in her Memorandum of Fact and Law, that (1) the Privacy Breach Class had reasonable expectation ofprivacy in the Collected Photographs and the associated primary and emerging data, such as biometric face prints [Collected PersonalData] (R v Ahmad, 2020 SCC 11; R v Bhogal, 2020 ONSC 7327; R v Cole, 2012 SCC 53); (2) by contracting with Clearview, obtainingaccess to the database and searching within the database, the RCMP conducted seizures and searches; (3) the searches and seizures wereconducted without a warrant and are thus presumptively unreasonable; and

(4) Charter damages are an appropriate remedy in the presentcase. [62] However, at the hearing, Ms. Doan confirmed that her claim is rather that the Privacy Breach Members were subject only to aseizure and that she did not claim they were subject to a search. Ms.

Doan added that the Re-Re-Amended Statement of Claim must beunderstood to read that the RCMP seized the personal biometric information of all the Privacy Breach Class Members, and thus her owninformation, by contracting with, obtaining access to and running searches within Clearview’s database. [63] Canada responds that (1) the pleadings contain no material facts to support Ms. Doan’s allegation of a seizure; and (2) the case lawdoes not support Ms. Doan’s claim to a reasonable expectation of privacy in the circumstances alleged by her. [64] Particularly, Canada asserts that standing to make a claim under

section 8 of the Charter is predicated on state conduct concretelyaffecting the claimant’s own privacy rights, and that Ms. Doan’s assertions neglect this. Canada adds that Ms. Doan’s pleadingsdisclosed no material facts that suggests the RCMP accessing Clearview resulted in the immediate seizure of the information of everysingle person within the database and that the mere fact the RCMP had access to information does not mean that they seized it. Inessence, Canada stressed that Ms.

Doan is suggesting that, by simply accessing Clearview, the RCMP seized every information,biometric or other, while her pleadings contain no material facts to support this. [65] Canada also submits that Ms. Doan’s

section 8 claim suffers from a second fatal flaw as the cases she cited involve activity orinformation that was intended to be anonymous or that was not made available to the public at large. Canada thus submits the case lawdoes not support Ms. Doan’s claim to a reasonable expectation of privacy in the circumstances she alleged, where she has voluntarilymade her photographs available to the public at large on the internet.

(2) Analysis [66]

Section 8 of the Charter states that "“[e]veryone has the right to be secure against unreasonable search or seizure”". The requiredelements of the

section 8 Charter breach in regards to a seizure are: (1) the public authority effected a seizure of the information withinthe meaning of

section 8 (R v Dyment, (SCC), [1988] 2 SCR 417 at 431 [Dyment]); (2) the plaintiff has a reasonableexpectation of privacy in the information allegedly seized (Hunter et al v Southam Inc, (SCC), [1984] 2 SCR 145); and(3) the seizure was unauthorized or unreasonable. A seizure conducted without authorization is prima facie unreasonable and the onus ofdemonstrating will then lie with the defendant (R v Collins, (SCC), [1987] 1 SCR 265). [67] At the hearing, Ms. Doan unequivocally confirmed that her claim relates to a breach of

section 8 of the Charter relating only to anunreasonable seizure. [68] A "“seizure”" has been defined as "“the taking of a thing from a person by a public official without that person’s consent”" (R vReeves, 2018 SCC 56 at para 13 citing Dyment at 431) as well as the compelled production of information, for example, pursuant to aregulatory statute (Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade PracticesCommission), (SCC), [1990] 1 SCR 425 at 505; R v McKinlay Transport Ltd, (SCC), [1990] 1 SCR627 at 642). [69] In regards to what can generally be construed as being linked to

section 8 of the Charter, Ms. Doan, in her Re-Re-AmendedStatement of Claim, alleges that the RCMP wilfully obtained access to and used Clearview – an illicit database –, and ran searches withinthe database (paragraphs 5, 7, 20 35, 45, 55, 58). [70] The Re-Re-Amended Statement of claim mentions the word "“seizure”" once, at paragraph 58, when stating that the "“RCMPviolated the rights to privacy and the right not to be subject to unreasonable search and seizure of the Class Members”" without anyadditional description.

The Re-Re-Amended Statement of Claim makes no reference to any expectation of privacy; at paragraph 55, itrefers to the unlawful access to the Clearview database and to searches ran within the database. Notably, the Re-Re-Amended Statementof Claim makes no mention of

section 8 of the Charter. [71] In essence, Ms. Doan claims (1) "“a declaration that the RCMP […] violated the rights of the Class Members by becoming a clientof Clearview and wilfully obtaining access to its database, and by running searches in Clearview’s database”" (2) damages pursuant tosubsection 24(1) of the Charter; and (3) "“that the […] RCMP violated the rights to privacy and the right not to be subject tounreasonable search and seizure of the Class Members, as well as their intellectual property rights in the materials the RCMP obtained

access to […] from Clearview” " . [ 72 ] Hence, with respect to the first element required for a

section 8 breach, Ms. Doan’s pleadings mention nothing in relation to the RCMP action that could amount to a seizure as contemplated by

section 8 . In my view, the pleadings lack the most elementary precision to allow the reader to identify the state conduct being the subject of the claim. [ 73 ] Even keeping in mind the generous

interpretation that pleadings ought to receive, I agree with Canada that Ms. Doan has failed to plead any material facts in support of the alleged seizure by the RCMP while it is a central element of her

section 8 breach claim. [ 74 ] Ms. Doan submits at the hearing that her pleadings must be understood to read that the RCMP seized the personal biometric information of all the Privacy Breach Class Members, and thus her own information, by contracting with, obtaining access to and running searches within Clearview’s database. [ 75 ] I disagree; her pleadings cannot be understood to read what she suggests. Although Ms.

Doan pleads that the RCMP conducted searches (on individuals other than herself and the Privacy Breach Class Members) in Clearview’s database, she does not allege that the Privacy Breach Class Members’ personal biometric information were in any way involved in those inquiries. Put differently, Ms. Doan does not plead that, by accessing or by conducting a search within Clearview’s database, the RCMP actually seized all of the Privacy Breach Class Members’ data, even biometric information, assuming they are in play, which she argued, is the basis of her

section 8 claim. She does not point to allegations in her Re-Re-Amended Statement of Claim in support of her assertion that the RCMP conducted a seizure of biometric or other information. [ 76 ] The Re-Re-Amended Statement of Claim does refer to biometric information, but in relation to Clearview’s activities (i.e., its database contains biometric information); it does not plead anything as to how the RCMP seized Ms.

Doan personal biometric information or those of the Privacy Breach Class Members by contracting with, obtaining access to, and running searches within Clearview’s database, particularly since she pleads it is irrelevant whether or not the RCMP searched for her. If the Court were to agree with Ms. Doan, it would ultimately endorse the idea that the mere fact that the RCMP has access to information means that it has seized it, and this position has no sound legal basis. [ 77 ] Ms.

Doan has not specifically pled in her Re-Re-Amended Statement of Claim how she or the Class Members have an expectation of privacy in the information allegedly seized, nor as to how the alleged seizure is unreasonable. [ 78 ] The use of specific words is not necessary to crystallize a cause of action ( Bigeagle FCA at para 38). However, in essence, t he pleadings clearly fail to tell the Defendant who, when, where, how and what gave rise to its liability as required by the Federal Court of Appeal in Mancuso . [ 79 ] There are no separate rules of pleadings for Charter cases ( Mancuso at para 21 ). Given that Ms.

Doan’s Re-Re-Amended Statement of Claim does not plead adequate material facts, and that pleading adequate material facts is mandatory, it is therefore plain and obvious that the cause of action under

section 8 of the Charter is doomed to fail. Ms. Doan has failed to establish that there is a reasonable prospect of success should the claim be permitted to proceed towards trial; the pleadings simply contain no discernable statement of the material facts on which Ms. Doan can rely to advance her claim. [ 80 ] It is thus plain and obvious that the cause of action under

section 8 of the Charter has no chance of success. E. Crown liability causes of action

(1) Institutional liability for actions of the Crown itself does not exist [ 81 ] As both Ms. Doan and Canada outline, any cause of action in civil liability against Canada begins with the Crown Liability Act where sections 3 and 10 state, inter alia , that the Crown is liable vicariously for t he damages caused by the fault of a servant of the Crown (Québec) and a tort committed by a servant of the Crown (other provinces). [ 82 ] Pursuant to sections 3 and 10 of the Crown Liability Act , the Crown can be held liable for the damages caused by

an act or omission of a servant of the Crown if such act or omission has given rise to a cause of action for liability against that servant. In the Québec context, according to

section 2 of the Crown Liability Act , " “liability” " means " “extracontractual civil liability” " which was found to encompass both the remedy of damages under the Civil Code and of punitive damages provided in the Québec Charter ( Hinse v Canada (Attorney General) , 2015 SCC 35 at para 156 [ Hinse ]). [ 83 ] The Supreme Court of Canada has unequivocally confirmed that the personal liability of a Crown servant is a precondition, while institutional fault or liability for actions of the Crown itself does not exist ( Hinse at paras 91-92 ; Merchant at para 40 ).

Per the clear language of the statute, the pleadings must disclose that a servant of the Crown committed a fault/tort. [ 84 ] In her Re-Re-Amended Statement of Claim, Ms. Doan clearly claims the RCMP’s liability and makes no claims in regards to its servants, agents or officers. Particularly, a t paragraph 51 of her Re-Re-Amended Statement of Claim, Ms. Doan pleads that under

section 3 of the Crown Liability Act , " “the federal Crown is liable for the faults and omissions of its agents and, hence, the RCMP” " , and at paragraph 52, she pleads that the RCMP engaged its liability (see also e.g., paragraphs 5, 6, 7(b), 35, 45, 53, 54, 55, 56, 58, 58.1 of the Re-Re-Amended Statement of Claim). [ 85 ] At paragraphs 35 and 36 of her Memorandum of Fact and Law, Ms. Doan submits that RCMP officers or members committed individual faults; however, Ms.

Doan confirmed unequivocally both in her Reply Memorandum and at the hearing that her allegation of fault/tort is based on institutional faults committed on a systemic basis by the RCMP and is irrespective of whether any particular RCMP member committed a fault. [ 86 ] Ms. Doan relies on Greenwood , Nasogaluak v Canada (Attorney General) , 2021 FC 656 [ Nasogaluak ] and Corriveau v Canada ,

2021 FC 267 [ Corriveau ] to assert that the case law holds that institutional faults committed on a systemic basis by the RCMP may engage the vicarious liability of the Crown under the Crown Liability Act , and that it is consequently far from plain and obvious that her claims against the Crown as construed cannot succeed. [ 87 ] I disagree with Ms. Doan. As mentioned above, the Supreme Court of Canada has clearly confirmed that the personal liability of a Crown servant is a precondition and that institutional fault or liability for the actions of the Crown itself does not exist ( Hinse at paras 91-92 ).

T he express statutory language of the Crown Liability Act makes it clear that Crown liability must be grounded in the personal liability of one or more Crown servants. The case law confirms that the RCMP is not itself a legal entity capable of being sued as an institution ( Davidson v Canada (Attorney General) , 2015 ONSC 8008 at paras 25 , 57-77 [ Davidson ]; Hinse at para 92 ). [ 88 ] The decisions cited by Ms. Doan do not assert otherwise.

On the contrary, they indicate that the Court has certified class actions in instances where the plaintiff sought the liability of the Crown for the wrongdoings of RCMP’s agents, servants and employees or again RCMP designated doctors, rather than the liability of the RCMP as an institution (see e.g., Greenwood at paras 185-187 ; Corriveau at paras 25 29; Nasogaluak at paras 30, 41 ). The fact that there might have existed or that the parties may have raised an element of systemic liability in the context of these decisions did not distract the courts from the clear language of the statute.

While it is true that it is not always necessary to identify the particular individuals for whose fault the Crown would be vicariously liable, this does not mean that the Crown, or in this case, the RCMP as an institution, can be directly liable ( Davidson at para 76 ) . [ 89 ] Since Ms. Doan’s pleadings do not claim a fault/tort committed by a servant, officer or agent of the RCMP, and since Ms.

Doan has clearly confirmed that her pleadings do not contain such a claim and argued that such a claim is not necessary to engage the liability of the RCMP as an institution, it is therefore plain and obvious that the claims against the Crown in damages under the Civil Code , in punitive damages pursuant to the Québec Charter , in negligence at common law, and under the tort of intrusion upon seclusion have no chance of success.

This is not an inadequacy attributed in drafting. [ 90 ] Institutional liability for the actions of the Crown itself does not exist, per the Supreme Court of Canada’s decision in Hinse , and all four of the causes of action that depend on the Crown Liability Act have no chance of success. [ 91 ] Although it is plain and obvious that these causes of action in civil liability have no chance of success for this reason alone, I will nonetheless examine them in turn individually.

(2) Causes of action under Québec law (

a) Parties’ position [ 92 ] In her Memorandum of Fact and Law, Ms. Doan alleges negligent violations of privacy rights under Québec law from the RCMP. She alleges that the RCMP committed a fault and violated the Privacy Breach Class’s privacy rights protected by the Québec Charter and thus engaged its liability under

article 1457 of the Civil Code by contracting with Clearview, obtaining access to and accessing Clearview’s database, searching within Clearview’s database, and failing to take adequate measures to assess the legality of Clearview. [ 93 ] Ms. Doan asserts that privacy rights are enshrined in the Civil Code and in the Québec Charter , which includes the right to one’s image, the right to anonymity and the right to control the use of one’s image. Hence, Ms.

Doan adds that under the general extracontractual civil liability regime, privacy rights violations give rise to claims in pecuniary and non-pecuniary damages and to punitive damages where the violation is intentional. She stresses that government actors may be held liable towards private parties by the establishment of a fault, causation and harm. [ 94 ] In her Memorandum of Fact and Law, Ms.

Doan alleged that both RCMP officers and the RCMP as an organization committed faults, although she confirmed, at the hearing and in her Reply, that she was claiming solely the liability of the RCMP as an organization, this is discussed above. [ 95 ] Hence, Ms. Doan alleged that the RCMP committed a fault and violated the Privacy Breach Class’s privacy rights protected by the Québec Charter , and thus engaged its liability under

article 1457 of the Civil Code , by retaining Clearview’s services, by failing to put in place adequate measures to ensure compliance with the governing privacy protections, by failing to pre-emptively assess whether Clearview’s tools were appropriate and legitimate, and by failing to determine whether Clearview complied with its regulatory obligations concerning its tools and services. [ 96 ] In essence, Ms.

Doan submits in her Memorandum of Fact and Law that: 1 . the Collected Photographs are protected ( articles 3 , 35 , 36 , 37 of the Civil Code ; sections 4 , 5 , 9 , 9.1 , 24 , 24.1 , 49 of the Québec Charter ; sections 44 and 45 of the Act to establish a legal framework for information technology , CQLR c C-1.1 ); 2 . the RCMP breached the Privacy Breach Class Members’ right to control the use of their image and to anonymity ( articles 5 , 36(3) of the Civil Code ) and the RCMP’s actions constitute unlawful surveillance; 3 . the RCMP acted intentionally and unlawfully; 4 . institutional faults committed on a systemic basis by the RCMP engage the vicarious liability of the Crown under sections 3 , 10 , 36 of the Crown Liability Act ; and 5. these faults caused direct and immediate harms to the Privacy Breach Class Members. [ 97 ] Accordingly, Ms.

Doan seeks compensatory damages under articles 1457 , 1607 , 1621 of the Civil Code and punitive damages under

section 49 of the Québec Charter .

[98] In her Reply Memorandum and at the hearing, Ms.

Doan identified the material facts in her pleadings that support the requisiteelements of her causes of action in extracontractual civil liability. [99] Particularly, she identifies the following: alleged fault: paragraphs 10 to 15, 17 to 20, 38.2 to 38.3, and 52 to 58 of her Re-Re-Amended Statement of Claim; alleged injury: paragraphs 5, 7, 30, 43 to 45, and 52 to 59 of the Re-Re-Amended Statement of Claim; causal link: paragraphs 5, 18 to 20, 26 to 31, 35, 38.1, 45, 52 to 58 of her Re-Re-Amended Statement of Claim; • allegation of an unlawful and intentional interference with a Québec Charter right: paragraphs 5, 18 to 20, 35 to 36, 38.1, 45, and 52 to58.1 of her Re-Re-Amended Statement of Claim; [100] Canada responds that there is no reasonable cause of action in extracontractual civil liability as the Crown is not liable.

I havealready examined the issue of the systemic institutional fault allegation above and concluded that the Crown cannot be liable. [101] In respect to her cause of action in damages under the Civil Code, Canada initially submitted that Ms. Doan alleges (and suffered)no injury, that she alleges (and has) no casual link, and that her allegations do not support a finding of fault. In other words, Canadaasserts that Ms. Doan has failed to plead material facts that could demonstrate each constitutive element of her cause of action. [102] At the hearing, Canada added to its response, given Ms.

Doan’s filing of Re-Re-Amended Statement of Claim the morning of thehearing. Canada examined each of the paragraphs Ms. Doan identified supporting an allegation of injury for her cause of action indamages. Canada submitted that, except for paragraph 58.1 of Ms. Doan’s Re-Re-Amended Statement of Claim, her pleadings do notpurport that she or any Member of the Subclass has suffered any injury and only assert general allegations.

As per paragraph 58.1 of Ms.Doan’s Re-Re-Amended Statement of Claim, Canada asserted that it (1) does not meet the threshold to support an allegation of injury (Liv Equifax, 2019 QCCS 4340 [Li]); and (2) fails to plead any injury suffered by Ms. Doan herself, which is fatal (Bou Malhab v DiffusionMétromédia CMR Inc, 2011 SCC 9 [Bou Malhab]). [103] Canada adds that Ms.

Doan has no reasonable cause of action for punitive damages under the Québec Charter because (1) she doesnot allege any personal violation of privacy; (2) there is no explicit allegation made suggesting an unlawful and intentional interferencewith a Québec Charter right as those terms are defined; and

(3) Ms. Doan’s alleged intentional interference is inconsistent with theapplicable standard (Quebec (Public Curator) v Syndicat national des employés de l'hôpital St-Ferdinand, (SCC),[1996] 3 SCR 211 at paras 118, 121 [Hôpital St-Ferdinand]). (

b) Analysis [104] Ms. Doan raises allegations of the Crown’s liability, for the Privacy Breach Class Members residents of Québec, under

article 1457of the Civil Code and under

section 49 of the Québec Charter. She seeks damages under the first and punitive damages under the second. [105] Ms. Doan does not address these two causes of action distinctively and I will thus address them under one heading as well. [106]

Article 1457 of the Civil Code states that: 1457. Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage orlaw, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and isbound to make reparation for the injury, whether it be bodily, moral or material in nature.

He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of anotherperson or by the act of things in his custody. [107] Is it not in dispute as between the parties that the requisite elements for a cause of action in damages based on extracontractual civilliability under

article 1457 of the Civil Code are the following: (1) the defendant committed a fault; (2) the plaintiff suffered an injury;and (3) there is a causal link between the fault and the injury (Infineon at paras 76-79). [108]

Section 49 of the Québec Charter states that: Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation ofsuch interference and compensation for the moral or material prejudice resulting therefrom.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitivedamages. [109] As for the cause of action in punitive damages under the Québec Charter, the Supreme Court of Canada stated, in de Montigny vBrossard (Succession), 2010 SCC 51 [de Montigny], that paragraph 49(2) of the Québec Charter sets out two conditions for awardingpunitive damages: the act – interference – in question must be both unlawful and intentional.

In regards to the first condition, i.e., that theact be unlawful, the Supreme Court of Canada cited the approach it had taken in Hôpital St-Ferdinand at paragraph 116: To find that there has been unlawful interference, it must be shown that a right protected by the Charter was infringed andthat the infringement resulted from wrongful conduct. A person’s conduct will be characterized as wrongful if, in engagingtherein, he or she violated a standard of conduct considered reasonable in the circumstances under the general law or, in thecase of certain protected rights, a standard set out in the Charter itself […].

[ 110 ] In regards to the second condition, the Supreme Court indicated that it involves determining whether the interference, or act, was intentional, which, it added, refers not to the intent to commit the fault but rather to the intent to cause the result thereof, adding that, in the context of the Québec Charter , the result in question is unlawful interference with a protected right. [ 111 ] As outlined earlier, in the present case, it is plain and obvious that Ms.

Doan’s claims based on the Civil Code and the Québec Charter do not disclose a reasonable cause of action because her pleadings fail to allege a fault committed by a servant of the Crown per the clear language of the Crown Liability Act and as confirmed by the Supreme Court of Canada in Hinse , as this is a constitutive element of both claims. [ 112 ] However, there are additional reasons why Ms. Doan’s causes of action under Québec law are doomed to fail. [ 113 ] In regards to extracontractual civil liability under

article 1457 of the Civil Code , Ms. Doan’s pleadings (1) fail to meet the threshold set out in the case law for demonstrating prima facie injury; and (2) do not contain any allegation that Ms.

Doan, as the Class Representative, has sustained a personal injury necessary to her cause of action ( Bou Malhab ). [ 114 ] In regards to injury, the case law is clear: the alleged injury " “must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept” " ( Mustapha v Culligan of Canada Ltd , 2008 SCC 27 at para 9 [ Mustapha ].

See also Mazzonna c DaimlerChrysler Financial Services Canada Inc/Services financiers DaimlerChrysler Inc , 2012 QCCS 958 at paras 56-63 ; Li at para 31 ; Sofio c Organisme canadien de réglementation du commerce des valeurs mobilières (OCRCVM) , 2015 QCCA 1820 at para 25 ; Fortin c Mazda Canada Inc , 2016 QCCA 31 at paras 170- 171 ). [ 115 ] The only allegation of injury contained in Ms. Doan’s Re-Re-Amended Statement of Claim to support a claim in damages under the Civil Code was added the morning of the hearing and is found at paragraph 58.1.

It reads as follows: As a foreseeable, direct and immediate result of the RCMP’s illegal, wrongful, negligent, and intentional actions and omissions (as set out above), the Class Members have suffered the following harms:

a) For the Class Members: distress, anxiety, discomfort, concern, and annoyance;

b) For the Privacy Breach Class Members: being put under continual and mass police surveillance, distress, anxiety, discomfort, concern, loss of propriety, and annoyance; […] [ 116 ] The alleged injury suffered by the Privacy Breach Class Members are clearly not characterized or described in a way that rises to the level of injury under her cause of action in damages based on extracontractual civil liability under the Civil Code . T he distress, anxiety, discomfort, concern, loss of propriety and annoyance pleaded by Ms. Doan are the nature of ordinary annoyances and anxieties. Bearing in mind the generous

interpretation that pleadings ought to receive, they are not sufficiently detailed to go beyond mere assertions, and it is therefore plain and obvious they do not constitute injury under the applicable law. [ 117 ] Moreover, Ms. Doan does not plead that she has suffered a personal injury. The paragraph cited above only asserts general injury suffered by the Privacy Breach Class Members.

However, injury is compensable under the Civil Code only if it is personal to the plaintiff, or put differently, the fault must go behind the screen of generality of the class and the representative plaintiff must be personally affected by the faulty conduct ( Bou Malhab at para 48 ). Accordingly, the class representative must plead that they sustained personal injury for their cause of action in extracontractual civil liability under the Civil Code to succeed, and Ms.

Doan has failed to do so ( Bou Malhab at paras 47-48 ). [ 118 ] The allegations found in paragraph 58.1 of the Re-Re-Amended Statement of Claim are insufficient as they do not demonstrate the existence of any specific compensable injury suffered by the Privacy Breach Class Members or by the Class Representative. [ 119 ] It is plain and obvious that Ms. Doan’s cause of action in extracontractual civil liability under

article 1457 of the Civil Code , based on the facts as pleaded, has no reasonable prospect of success . I need not examine the other arguments raised by Canada in regards to the causal link. [ 120 ] Punitive damages claim under paragraph 49(2) of the Québec Charter can succeed on an independent stand-alone basis ( de Montigny at paras 38-46 ), but the requisite elements must be pleaded. In the present case, I find that Ms. Doan’s pleadings on the intentionality of the interference are clearly insufficient at this stage.

Particularly, she fails to allege that the result of the wrongful conduct was desired as required by the Supreme Court of Canada in de Montigny . [ 121 ] In another one of the landmark cases on the topic, the Supreme Court of Canada determined that an intentional interference can arise when (1) the author of the unlawful interference has " “a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct” " ; or (2) the " “person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause” " ( Hôpital St-Ferdinand at para 121).

It further stated " “an individual’s recklessness, however wild and foolhardy, as to the consequences of his or her wrongful acts will not in itself satisfy this test” " ( Hôpital St-Ferdinand at para 121) . [ 122 ] Ms. Doan submits that her pleadings do in fact allege an intentional interference with Québec Charter rights by the RCMP and she refers in her Reply Memorandum to her Re-Amended Statement of Claim at paragraphs 5, 18 to 20, 35 to 36, 38.1, 45 and 52 to 58. She added reference to paragraph 58.1 of her Re-Re-Amended Statement of Claim at the hearing.

She asserts that her pleadings establish that the RCMP wilfully obtained access to an illicit database and ran searches within prior to assessing whether the tools offered by Clearview were legal, and in her Reply Memorandum, she submits that these allegations amount to an " “intentional conduct or proof of willfully blind or grossly negligent conduct” " which in her view meets the applicable standard ( Spieser c Procureur général du Canada , 2020 QCCA 42 at paras 558 , 568-592; Brochu c Agence du revenu du Québec , 2018 QCCS 722 at paras 181-183 ). [ 123 ] According to Ms.

Doan’s pleadings, confirmed by her submissions, the RCMP’s intentional interference with the Privacy Breach

Class’s privacy rights lies in its intent to commit its actions and omissions (having access and running searches in Clearview’s database), hence the alleged fault, rather than in its desire to cause the consequences of said actions or omissions (i.e., anxiety, loss of property, discomfort, etc.). However, " “intentionality refers not to the intent to commit the fault but rather to the intent to cause the result thereof” " ( de Montigny at para 60 ).

In order for her claim to succeed, based on the Supreme Court’s teachings, she needed to plead that the RCMP intentionally caused the consequences of its wrongful conduct or it could not ignore, without being voluntarily blind, the consequences would result from its actions or omissions. [ 124 ] Again, the Crown cannot be liable and Ms. Doan has failed to plead the requisite material facts to support the cause of action she raises. Even a generous approach to Ms. Doan’s pleadings cannot fill the numerous gaps identified above ( Bigeagle FC at para 183). It is therefore plain and obvious that Ms.

Doan’s causes of action in Québec law, based on the facts as pleaded in her Re-Re-Amended Statement of Claim, have no reasonable prospect of success.

(3) Causes of action under common law (

a) Tort of intrusion upon seclusion (

i) Parties’ position [ 125 ] Ms. Doan raises the tort of intrusion upon seclusion on behalf of the Privacy Breach Class Members residing outside of Québec which, she argues, imposes liability on a person who intentionally intrudes upon the seclusion, private affairs, or private concerns of another person, where " “the invasion would be highly offensive to a reasonable person” " ( Jones v Tsige , 2012 ONCA 32 at para 70 [ Jones ]).

She says that the RCMP invaded the private affairs or concerns of the Privacy Breach Class by contracting with Clearview, gaining access to Clearview’s database, and conducting searches within Clearview’s database. Ms.

Doan alleges that the necessary requirements are met, and based on the facts as pleaded at paragraphs 20, 30 to 35, 38.1, 43 to 45, 50, 52, 55 to 58, and 58.1 of her Re- Re-Amended Statement of Claim, damages, including pecuniary, non-pecuniary, punitive and aggravated damages are available to the Privacy Breach Class Members who reside outside Québec as remedies for the tortious acts committed by the RCMP. [ 126 ] Canada responds that (1) the Crown is liable only vicariously for the torts of its servants;

(2) Ms. Doan is a resident of Québec, thus subject to Québec law, and the tort of intrusion upon seclusion does not exist in Québec law ( Darmar Farms Inc v Syngenta Canada Inc , 2019 ONCA 789 at paras 35-38 (leave to appeal to SCC refused, 38915) [ Darmar ]); and (3) in any event, Ms. Doan has not pleaded any material allegations with respect to the elements required for the application of the tort of intrusion upon seclusion. More specifically, Canada submits that Ms.

Doan’s pleadings do not allege that Canada invaded her private affairs without justification, as is required by the second element of the test for the tort, and secondly, the personal information is not sufficiently intrusive to give rise to the cause of action. [ 127 ] In her Reply Memorandum, Ms. Doan asserts that it is sufficient that the cause of action be held by Class Members; it need not be held by every Class Member nor by the Class Representative in particular.

She notably relies on Bank of Montreal v Marcotte , 2014 SCC 55 at paragraph 55 [ Marcotte ] and MacKinnon v Instaloans Financial Solution Centres (Kelowna) Ltd , 2004 BCCA 472 at paragraph 51 [ MacKinnon ]. (ii) Analysis [ 128 ] Again, according to sections 3 and 10 of the Crown Liability Act , Canada is only vicariously liable for torts committed by Crown servants ( Asghar v Canada , 2023 FCA 62 [ Asghar ]). I have already addressed this issue above. [ 129 ] Ms. Doan relies on the Ontario Court of Appeal’s decision in Jones to allege a tort of intrusion upon seclusion committed by the RCMP.

The key features of this cause of action are (1) that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; (2) that the defendant’s conduct must be intentional, within which includes reckless; and (3) that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish ( Jones at para 71 ). [ 130 ] Canada alleges that Ms.

Doan has no reasonable cause of action because she is a resident of Québec, is thus subject to Québec law, and the substantive law of Québec does not recognize this tort. [ 131 ] While the Ontario courts decided that there must be a representative who can claim from each of the defendants, or in other words, if the representative plaintiff does not have a reasonable cause of action against the defendant, it does not matter that other potential class members may ( Darmar at paras 35-38; Taylor v Canada (Attorney General) , 2012 ONCA 479 at para 21 ), courts from other provinces found it was sufficient that a cause of action be held by class members, and not necessarily the representative plaintiff, as long as a cause of action exists against each named defendant ( MacKinnon at para 51 ; Banque de Montreal c Marcotte , 2012 QCCA 1396 at paras 52- 57 ; Marcotte at para 55 ). [ 132 ] None of the cases I am aware on this issue is binding on this Court.

I further note that I only found two cases from this Court in which the motion for class certification considered including Québec residents, even though the representative plaintiff was from another province, but ultimately found that the Québec law argument lacked a reasonable cause of action due to the absence of material facts (see e.g., Tippett v Canada , 2019 FC 869 at paras 3 , 8, 75; Bigeagle FC at para 218). In these circumstances, I do not find the Ontario courts’ decisions relied on by Canada to be very persuasive authority for rejecting Ms. Doan’s claim at this early stage.

There must be " “a decided case directly on point, from the same jurisdiction, demonstrating that the very issue has been squarely dealt with and rejected” " ( Arsenault v Canada , 2008 FC 299 at para 27 cited in Airbnb at para 59 ) to conclude that it is plain and obvious that no claim exists, and Canada has failed to demonstrate that such a case exists in this matter. [ 133 ] However, notwithstanding what I have just highlighted, the present case presents a peculiar set of circumstances, as Ms. Doan’s pleadings disclosed no personal reasonable cause of action against Canada.

I have already outlined that her causes of action under Québec law are doomed to fail, and, as will be discussed in the next subsection, I reach the same conclusion in regards to her claims

under the Copyright Act. In my view, it would be antinomic to the objectives of a class proceeding, and to the Rules, to permit arepresentative plaintiff to bring a class action on behalf of members who have a cause of action without the representative plaintiffthemselves having a cause of action against at least one defendant (Horseman v Canada, 2015 FC 1149 at paras 24-26). [134] In particular, I highlight that Rule 334.12(1) provides that "“a member of a class of persons may commence an action or anapplication on behalf of the members of that class”".

Rule 334.12(2) then states that "“[t]he member shall bring a motion for thecertification of the proceeding as a class proceeding and for the appointment of the member as representative plaintiff or applicant”".Rule 334.12(3) provides that "“[t]he representative of a class shall be a person who may act as a plaintiff or an applicant under theseRules”".

The Federal Court of Appeal indicated (albeit in the context of the condition of Rule 334.16(1)(e)) that "“[t]hese provisionscertainly suggest that a proposed class proceeding has to be commenced by a member of the relevant class of persons”" (Jost at para104). [135] In Bisaillon v Concordia University, 2006 SCC 19, the Supreme Court of Canada confirmed that the class proceeding does notmodify or create substantive rights (paragraph 17): The class action is nevertheless a procedural vehicle whose use neither modifies nor creates substantive rights (Malhab vMétromédia CMR Montréal Inc, (QC CA), [2003] RJQ. 1011 (CA), at paras 57-58; Tremaine v AHRobins Canada Inc, (QC CA), [1990] RDJ 500 (CA), at p 507; Y.

Lauzon, Le recours collectif (2001), atpp 5 and 9). It cannot serve as a basis for legal proceedings if the various claims it covers, taken individually, would not doso: D. Ferland and B. Emery, eds, Précis de procédure civile du Québec (4th ed 2003), vol 2, at pp 876-77. [136] At the hearing, Ms. Doan confirmed that as long as she has one personal cause of action against Canada, she can advance a classaction on behalf of other Class Members whether or not she can personally advance them. [137] In any event, again I find that Ms.

Doan’s Re-Re-Amended Statement of Claim contains no material allegations that the RCMPintentionally or recklessly invaded her private affa

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