COURT FILE NO.: CV-20-00648087-00CP
DATE: 20221122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JULIE MUELLER, ROYANN KEMP, AND DANIELLE BUCHANAN
Plaintiffs
- and -
FACEBOOK, INC.; FACEBOOK CANADA LTD., GOOGLE LLC; GOOGLE CANADA CORPORATION; and ALPHABET INC.
Defendants
Proceeding under the Class Proceedings Act, 1991
Glyn Hotz, Darrel N. Hotz and Jodi Rhiger for the Plaintiffs
Mark A. Gelowitz, Robert Carson, and Lauren Harper for the Defendants Facebook, Inc. and Facebook Canada Ltd.
Andrew Bernstein and Jeremy Opolsky for the Defendants Google LLC, Google Canada Corporation and Alphabet Inc.
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
[1] This is a proceeding under the Class Proceedings Act, 1992.[^1]This is a consent motion, in writing, to approve the dismissal of this putative class proceeding on a without costs basis.
[2] In this action, the Plaintiffs Julie Mueller, Royann Kemp, and Danielle Buchanan allege that Facebook scrapped “Call & Text Logs” from users who installed the Messenger app on Android devices.
[3] This action is one of four proposed class actions in Canada against Facebook regarding the same allegations. The other three actions have been concluded.
a. In British Columbia, certification of a national class action was denied. On January 27, 2022, Justice Skolrood dismissed the certification application, finding that the plaintiffs failed to establish any basis in fact for the central allegation.[^2] The plaintiffs did not appeal.
b. In Québec, on July 12, 2022, Justice Davis approved the discontinuance of Leventakis c. Facebook, Inc.[^3]
c. In Ontario, by order dated March 23, 2022, Justice Glustein discontinued the action in Ontario that was parallel to the British Columbia action.[^4]
[4] Unlike the other actions, this action names Google as a defendant. However, Plaintiffs’ counsel acknowledges that it is extremely unlikely that the plaintiffs could succeed against Google if the action fails against Facebook.
[5] After Justice Skolrood denied certification in the BC Action, the proposed representative plaintiffs in this Action instructed their counsel that they no longer wish to proceed with the action. They are not willing to incur the risk of an adverse costs award.
[6] The immediate action has never been publicized on the websites of plaintiffs’ counsel, by press release, or anywhere else. Plaintiffs’ counsel did not receive any communication from any putative class member, and the Plaintiffs’ lawyers are not aware of any putative class member who was relying upon this action.
[7] Section 29 of the Class Proceedings Act, 1992 requires court approval for the discontinuance, abandonment, dismissal or settlement of a proceeding commenced under the Act. Section 29 states:
Discontinuance, abandonment and settlement
- (1) A proceeding commenced under this Act and a proceeding certified as a class proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.
Settlement without court approval not binding
(2) A settlement of a class proceeding is not binding unless approved by the court.
Effect of settlement
(3) A settlement of a class proceeding that is approved by the court binds all class members.
Notice: dismissal, discontinuance, abandonment or settlement
(4) In dismissing a proceeding for delay or in approving a discontinuance, abandonment or settlement, the court shall consider whether notice should be given under section 19 and whether any notice should include,
(a) an account of the conduct of the proceeding;
(b) a statement of the result of the proceeding; and
(c) a description of any plan for distributing settlement funds.
[8] A motion for discontinuance or abandonment should be carefully scrutinized, and the court should consider, among other things: whether the proceeding was commenced for an improper purpose; whether, if necessary, there is a viable replacement party so that putative class members are not prejudiced; or whether the defendant will be prejudiced.[^5]
[9] I am satisfied that the test for a discontinuance has been met in the immediate case. A dismissal is appropriate for the following reasons: (a) the action was not brought for an improper purpose; (b) neither the Plaintiffs nor putative Class Counsel will receive any private benefit from the defendants to the detriment of Class Members, in exchange for the dismissal; and (c) the Defendants consent to the dismissal of the action on a without costs basis.
[10] In the circumstances of the immediate case, this is an appropriate case in which to dispense with notice of the discontinuance/dismissal.
[11] Order to go as requested.
Perell, J.
Released: November 22, 2022
COURT FILE NO.: CV-20-00648087-00CP
DATE: 20221122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JULIE MUELLER, ROYANN KEMP, AND DANIELLE BUCHANAN
Plaintiffs
- and –
FACEBOOK, INC.; FACEBOOK CANADA LTD., GOOGLE LLC; GOOGLE CANADA CORPORATION; and ALPHABET INC.
Defendants
REASONS FOR DECISION
PERELL J.
Released: November 22, 2022
[^1]: S.O. 1992, c. 6.
[^2]: Chow v. Facebook, Inc., 2022 BCSC 137.
[^3]: 2022 QCCS 2669.
[^4]: Dockrill v. Facebook, Inc., CV-18-00602694-00CP.
[^5]: Green v. The Hospital for Sick Children, 2021 ONSC 8237; Batten v. Boehringer Ingelheim, 2021 ONSC 6606; Bardoul v. Novartis Pharmaceuticals Canada Inc., 2021 ONSC 2261; Winter v. C.R. Bard, 2020 ONSC 3532; Naylor v. Coloplast Canada Corporation, 2016 ONSC 1294; Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2012 ONSC 5288; Frank v. Farlie, Turner & Co, LLC, 2011 ONSC 7137; Hudson v Austin, 2010 ONSC 2789; Sollen v. Pfizer, 2008 ONCA 803, [2008] O.J. No 4787 (C.A.), aff'g 2008 ONSC 8618, [2008] O.J. No. 866 (S.C.J.); Logan v. Canada (Minister of Health), [2003] O.J. No. 418 (S.C.J.), aff’d (2004), 2004 ONCA 184, 71 O.R. (3d) 451 (C.A.).