The British Columbia Court of Appeal has dismissed an appeal by shoppers who say Cadillac Fairview collected their biometric data through cameras built into mall directories, leaving them without a class action to pursue.
Justice Andrew Mayer, writing for a three-justice panel in Cleaver v. The Cadillac Fairview Corporation Limited, found the plaintiffs could not establish an identifiable class of two or more people, could not show their claims raised common issues, and had not demonstrated that a class proceeding was the preferable procedure. British Columbia’s Class Proceedings Act requires all five certification criteria to be satisfied, and the plaintiffs failed three.
The preferability finding proved decisive because the plaintiffs did not challenge it on appeal. Mayer said the omission “was not inadvertent” and that “the problem is not merely a technical one,” describing the lower court’s reasons as “unassailable” and noting it had given cogent grounds for concluding a class proceeding would not be efficient from a judicial economy perspective. “It is not apparent that any damage has been occasioned by the respondents’ conduct, or that there will be any systemic or social benefit to pursuing a class proceeding,” he wrote. The BC Supreme Court had declined to certify the case last year.
The dispute goes back to a 2018 pilot at properties including Toronto’s Eaton Centre, Pacific Centre in Vancouver, Chinook Centre in Calgary, Carrefour Laval and Polo Park in Winnipeg. Cameras in the mall directories ran video analytics that detected faces and converted each image into a string of numbers, with the aim of estimating how many visitors came through and their approximate age and gender. According to the appeal court no facial images were retained, and neither Cadillac Fairview nor the malls received or used the data. The pilot ran eight weeks and stopped after reports circulated that it involved facial recognition software.
The privacy commissioners of Canada, Alberta and British Columbia investigated and concluded in October 2020 that the software had collected personal information including biometric data, location and timestamps, but took no further action because the software was already disabled and the data deleted. Canada’s privacy commissioner has since issued detailed guidance on handling biometric data under PIPEDA.
Theodore Charney of Charney Lawyers, for the plaintiffs, said it was important that privacy commissioner reports remain admissible in class proceedings. Kirsten Thompson of Dentons, for Cadillac Fairview, said there was “simply no basis in fact that any facial images or biometric and personal information was recorded” by the company.
Sources: Canadian Lawyer
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By Cass Kennedy
