BC Court Rejects Class Action Over Mall Facial Recognition Data Collection

The Supreme Court of British Columbia has declined to certify a proposed class action lawsuit against Cadillac Fairview over the alleged unauthorized collection of biometric data from mall shoppers. The ruling, issued toward the end of last week, concludes that the plaintiffs failed to demonstrate the existence of a clearly identifiable group of affected individuals or common legal issues that could justify class-wide resolution.

Biometric Claims and Technical Evidence

The case stems from a 2018 pilot project in which Cadillac Fairview installed embedded cameras in digital directories at 12 shopping centers across Canada, including Vancouver’s Pacific Centre and Toronto’s Eaton Centre. The project prompted concern from regulators after privacy commissioners determined in 2020 that the company had collected data from roughly 5 million individuals without proper consent.

However, in the court’s analysis, these findings were admissible only to provide background—not as proof of wrongdoing. Instead, the court relied primarily on technical evidence presented by Cadillac Fairview’s expert witness, a computer vision specialist. This expert demonstrated that the system generated numerical data representations – known as embeddings – but that these were not unique biometric identifiers and could not be used to identify or re-identify individuals. Without a showing that the data constituted personal information or enabled tracking, the court found no common factual foundation for the plaintiffs’ allegations.

“Questions as to whether the defendants invaded the plaintiffs’ privacy under various statutes and are liable to pay the plaintiffs’ damages for such breaches are all questions that are founded on the existence of a common factual allegation of wrongdoing,” the court wrote. “Since the plaintiffs have failed to establish any basis in fact to conclude that these allegations could be proved on a class-wide basis, it follows that the question of liability is not determinable on a class-wide basis.”

No Harm, No Class, No Preferable Procedure

The plaintiffs had sought to certify a nationwide class action covering shoppers in British Columbia, Alberta, Manitoba, Ontario, and Quebec. Their claims included intrusion upon seclusion, statutory privacy violations, and negligence. However, the court noted that neither proposed representative plaintiff had submitted any evidence of harm or damages. That absence further undercut the argument for certifying a class.

The court also found that a class action was not the preferable procedure for resolving the dispute, citing the lack of common legal or factual issues, the highly individualized nature of any harm claims, and the fact that Cadillac Fairview had already ended the project and permanently deleted the data. These findings combined to deny certification in full.

The decision arrives amid heightened scrutiny of biometric surveillance in Canada. The Canadian Civil Liberties Association has previously called for a moratorium on facial recognition technology, citing privacy concerns and potential overreach by both private companies and government agencies.

A related proceeding in Quebec has been paused, and legal observers say the British Columbia ruling may influence its outcome.

Sources: Canadian Lawyer, Dentons Data

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May 21, 2025 – by Cass Kennedy