Court File and Parties

COURT FILE NO. : CV-21-00674203-0000 DATE : 20230227 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shane O’Herlihy AND: Facebook, Inc., Facebook Canada, Ltd. and Meta Platforms, Inc.

BEFORE: Justice Chalmers

COUNSEL: S. O’Herlihy, Self-Represented I. Aversa, M. Spence, and J. Suttner for the Defendants

HEARD: January 19, 2023

Endorsement

OVERVIEW

[1] The Plaintiff commenced this claim against Facebook Inc., Facebook Canada Ltd. and Meta Platform (Facebook) on December 22, 2021. The Statement of Claim spans 336 paragraphs and 46 pages. Facebook argues that the Claim includes improperly pleaded irrelevant, vague, scandalous and frivolous allegations.

[2] Facebook also argues that the Claim is part of an overall strategy on the part of the Plaintiff to bring actions against large well-resourced tech companies and government organization in the hopes of a quick settlement. Since February 16, 2021, the Plaintiff has brought at least 16 actions against Google, Amazon Zoom, StubHub, Uber, Clearview AI, Face4 Systems, Bell Canada, the RCMP, the Toronto Police, Canada Border Services, the Greater Toronto Airport Authority, the City of Toronto, Apple, Bell Technical Solutions and TikTok. Facebook states that many of the claims follow the same pattern and are duplicative, word-for-word reproductions of the claims the Plaintiff has raised in this action.

[3] The Plaintiff denies that he is engaging in a “litigation scheme”. He argues that the other actions were legitimate claims. Nine of the claims have resolved. The Plaintiff states that after the other claims were issued the parties reached modest monetary settlements.

[4] Facebook brings this motion pursuant to R. 21 of the Rules of Civil Procedure for an order striking the Claim on the basis that the Plaintiff’s litigation scheme is an abuse of process. Alternatively, Facebook seeks an order striking out those paragraphs of the Statement of Claim that are not properly pleaded and that disclose no reasonable cause of action.

[5] The Plaintiff argues that he has valid claims against Facebook including invasion of privacy, violation of the Personal Information Protection and Electronic Documents Act ( PIPEDA ), SC 2000, c. 5, trespass, intrusion upon seclusion and breaches of the Charter of Rights and Freedoms , the Competition Act , R.S.C., 1985, c. C-34, and the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A. The Plaintiff denies that the Claim as pleaded is scandalous, frivolous or vexatious.

[6] For the reasons set out below, I allow the Defendants’ motion, in part. The Statement of Claim is struck in its entirety. However, I grant leave to the Plaintiff to deliver a Fresh as Amended Statement of Claim.

FACTUAL BACKGROUND

[7] The Plaintiff commenced this Claim on December 22, 2021, requesting:

(a) $500,000 in general, special and statutory damages to compensate the Plaintiff for the alleged harm to him caused by the Defendants’ allegedly unlawful conduct;

(b) various declarations, including that the Defendants:

(i) made false, misleading, deceptive, and unconscionable misrepresentations amounting to unfair and unconscionable practices in violation of the Ontario Consumer Protection Act and other similar legislation;

(ii) illegally collected, copied, stored, used and disclosed the Plaintiff’s personal information and biometric identifiers;

(iii) violated the Plaintiff’s constitutional rights; and

(iv) infringed the copyright and/or moral rights of the Plaintiff’s “works”.

(c) damages and costs of the investigation and prosecution of these proceedings pursuant to Section 36(1) of the Competition Act , R.S.C., 1985, c. C-34;

(d) damages pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms (the “ Charter ”);

(e) an order directing the Defendants to destroy all of the Plaintiff’s Personal Information and any other information about the Plaintiff illegally collected;

(f) an order directing the Defendants to remove from its database and to destroy all copies of the Plaintiff’s photographs;

(g) damages pursuant to Sections 18(1) and 26(9) of the Consumer Protection Act ;

(h) an accounting, disgorgement, and restitution for unjust enrichment, conversion, trespass, and breach of both Personal Information Protection and Electronic Documents Act , S.C. 2000, c. 5 (“ PIPEDA ”) and the Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 (“ FIPPA ”);

(i) punitive and exemplary damages in the amount of $3,000,000; and

(j) a permanent injunction restraining the Defendants from taking any further action against the Plaintiff in contravention of the Competition Act , Ontario Consumer Protection Act , PIPEDA , FIPPA , and applicable common law.

[8] The Plaintiff summarizes his claim against Facebook as follows:

14. The legal case herein concerns Facebook's blatant disregard for my privacy interests in my Personal Information. Facebook has abused the data entrusted to it by me and other Facebook users by creating and implementing Facebook developer tools which granted Third Party developers access to our Personal Information as well as cascading access to the Personal Information of the friends of that user. Despite knowing that Third Parties could access the Personal Information of users through applications on Facebook, in which users themselves had not participated, Facebook took no affirmative action and, thereby, refused or otherwise failed to fix, change or remedy this known defect in its existing developer tools.

15. The action herein also concerns privacy and intellectual property violations committed by Facebook against me over the years and which I only recently discovered, including the illegal use of facial recognition technology, human rights violations, illegally viewing my private messages, conscripting my information and hardware tools to monitor my physical whereabouts, selling my private information to third parties and converting that information into metadata, monetary scams, infringing on the copyright and moral rights I hold in my creative works, and trying to turn me into a gambling junkie through a series of rigged games.

[9] The Plaintiff claims damages for the following: Facebook’s use of facial recognition software, data mining, discrimination, Facebook security breaches, Facebook reading and collecting the contents of his private messages, selling data and private information to third parties, Facebook scams, use of location data, infringement of copyright, Facebook sponsored stories, gambling claims, invasion of privacy and PIPEDA claims, illicit database claims, trespass, conversion, breach of the Competition Act , breach of Consumer Protection Act , unjust enrichment, and fraudulent concealment claims.

[10] The Claim, at paragraph 84, incorporates by reference the Defendants’ “Terms of Service” and “Data Policy”. Facebook argues that when the Plaintiff began using Facebook he agreed to the Terms and Policies. The Data Policy provides that Facebook may collect user data and sets out how the collected data is used and shared with others.

THE ISSUES

[11] The Defendant moves under R. 21.01(1) and (3) to strike the Claim on the basis that it is frivolous and vexatious, an abuse of process, and discloses no reasonable cause of action. The Defendant also moves under R. 25.11 to strike out certain paragraphs of the Claim on the basis that those paragraphs are frivolous, scandalous and vexatious and disclose no reasonable cause of action.

ANALYSIS AND DISCUSSION

1. The Law

General Rules that Apply to all Pleadings and Motions to Strike

Rule 25.06(1)

[12] R. 25.06(1) of the Rules of Civil Procedure directs that every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence. The pleading is to be brief, clear, focused and plead the material facts to support the claim: Del Giudice v. Thompson, 2021 ONSC 5379, at para. 52. “Material” facts are facts that establish the constituent elements of the claim or defence.

Rule 21.01(1)(b)

[13] Rule 21.01(1)(b) provides that a judge may strike a pleading for disclosing no reasonable cause of action. The only question to be considered is whether the Statement of Claim pleads a legally sufficient claim. As stated in Dawson v. Rexcraft Storage and Warehouse Inc., at para. 9:

[….] the only question posed by the motion is whether the statement of claim states a legally sufficient claim, i.e., whether it is substantively adequate. Consequently, the motions judge, as mandated by rule 21.01(2)(b), does not consider any evidence in deciding the motion. The motions judge addresses a purely legal question: whether, assuming the plaintiff can prove the allegations pleaded in the statement of claim, he or she will have established a cause of action entitling him or her to some form of relief from the defendant. Because dismissal of an action for failure to state a reasonable cause of action is a drastic measure, the court is required to give a generous reading to the statement of claim, construe it in the light most favourable to the plaintiff, and be satisfied that it is plain and obvious that the plaintiff cannot succeed.

[14] The following principles apply to a Rule 21 motion to strike a pleading for failing to disclose a reasonable cause of action:

(a) the material facts pleaded must be deemed to be proven or true, except to the extent that the alleged facts are patently ridiculous or incapable of proof;

(b) the claim incorporates by reference any document pleaded and the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the pleadings;

(c) novelty of the cause of action is of no concern at this stage [page730] of the proceeding;

(d) the statement of claim must be read generously to allow for drafting deficiencies; and

(e) if the claim has some chance of success, it must be permitted to proceed: Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683, at para. 31.

[15] The test for a motion under Rule 21.01(b) is whether it is plain and obvious that the pleading discloses no cause of action. The moving party satisfies the test if the allegations do not give rise to a recognized cause of action, or where the plaintiff fails to plead a necessary element of a recognized cause of action.

Rule 25.11(b)

[16] Rule 25.11(b) permits the Court to strike a pleading as scandalous, frivolous or vexatious, or is an abuse of the Court. A pleading may be scandalous, frivolous or vexatious when it asserts untenable pleas, is argumentative, contains insufficient material facts to support the allegations made, or is made for an extraneous or collateral purpose. A scandalous pleading may include indecent or offensive allegations designed to prejudice the other party; irrelevant and argumentative allegations that are inserted only for colour, or bare unfounded allegations that cannot influence the outcome of the action: Stedfasts Inc. v. Dynacare Laboratories, 2019 ONSC 6626, at para 35.

[17] On a motion to strike a pleading on the grounds under R. 25.11, the court will assume that the facts as alleged in the claim are true for the purpose of determining whether a reasonable cause of action is disclosed. Evidence may be admissible on a R. 25.11 motion. However, the motion is not to be turned into an “evidentiary disposition”. The claim will be struck only in the clearest of cases where it is plain and obvious that the case cannot succeed. Where a case cannot succeed because the law forbids it, the rule brings an end to the proceedings. However, in cases that are dependent upon the facts, the court should be “very loath” to dismiss the claim at this early stage: Miguna v. Toronto Police Services Board, 2008 ONCA 799, at paras. 20, 21 and 34.

[18] With those general principles in mind, I turn now to a consideration of the Statement of Claim.

2. Abuse of Process - Evidence of the Other Claims

[19] The Defendants argue that the Plaintiff has engaged in an abusive litigation strategy in which he advances frivolous actions in the hopes of obtaining quick settlements from the Defendants. Facebook points to the fact that since February 2021, the Plaintiff has brought 16 separate lawsuits against major tech companies and government entities.

[20] The Defendants argue that the Plaintiff follows a similar pattern. The Plaintiff identifies a well-resourced organization, drafts an extremely broad claim, and files the claim in the hopes that the defendant will settle quickly rather than expend resources defending broad and unsupported allegations. Similar claims have been brought by the Plaintiff against large and well-funded tech companies including Zoom, Google, Amazon and Apple. The Defendants argue that many of the claims raised in the action against Facebook are word-for-word reproductions of claims the Plaintiff raised in previously filed actions against other tech companies.

[21] The Defendants argue that the evidence of the other pleadings is admissible on a motion under R. 25.11. That rule does not prohibit evidence on a pleadings motion. The Defendants also argue that in the circumstances, leave ought to be granted under R. 21.01 to permit the statements of claim in the other actions, be admitted into evidence on this motion, to establish that the action brought against Facebook is part of an abusive litigation strategy.

[22] The Plaintiff argues that the other pleadings should not be tendered into evidence. As noted above, no evidence is admissible on a R. 21.01 motion without leave of the court. He states that leave should not be granted because the other claims are irrelevant to the issue before this court, which is whether the claim against Facebook is, on its face, frivolous or vexatious.

[23] Alternatively, he argues that if the other claims are admitted into evidence, the claims do not support the Defendants’ position that he has engaged in an abusive litigation scheme. He states that nine of the ten claims enclosed in the Defendants’ Motion Record have resolved. The Plaintiff argues that the fact that nine of the ten claims resolved, supports his position that the other claims had merit and created risk to the Defendants. He also argues that his ability to argue the merits of those claims may be restricted due to non-disclosure agreements that are in place with the companies that settled with him.

[24] The Plaintiff also states that the fact there are similarities in the various claims is not a relevant factor. He argues that many of the tech companies engaged in similar conduct, and it is for that reason that the claims are similar. He also notes that the use of precedents in litigation is not unusual.

[25] I am of the view that the claims in the other actions should not be admitted into evidence on this motion. Although evidence is admissible on a R. 25.11 motion, the motion is not to be turned into an “evidentiary disposition”. To conclusively find that the other claims were part of an abusive litigation strategy, it would be necessary to consider the merits of each claim. In my view, a consideration of the merits of each claim would result the type of “evidentiary disposition” that is not permitted on a pleadings motion. In any event, it is my view that the motion can be determined without having to consider the other claims, on the basis that Claim is, on its face, scandalous, frivolous and/or vexatious.

3. Scandalous, Frivolous or Vexatious

[26] Rule 25.06(1) provides that every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved. The Defendant argues that the claim is anything but concise. The claim consists of 336 paragraphs. The Plaintiff seeks significant damages for several different causes of actions. In their factum, the Defendants state that the claim is a “textbook example of the type of unparticularized, rambling, confusing pleading that must be filtered out on a motion to strike, so that it does not continue to burden and waste the resources of the Court.”

[27] The Plaintiff argues that the Statement of Claim is lengthy because Facebook committed many different wrongs as against him. He was required to go through the remedies and legal theories in detail to set out his claim. He acknowledges that there is some repetition of the facts. He concedes it is not a “perfect” Statement of Claim. He states that he is entitled to some leeway because he is self-represented.

The Individual Claims

[28] It is my view that there are serious deficiencies with respect to each of the individual claims advanced by the Plaintiff.

i. Facial Recognition Software

[29] At paragraphs 23-50 of the Claim there is reference to Facebook’s use of facial recognition software. The Plaintiff makes broad claims on behalf of all Facebook users.

23. The Plaintiff pleads that Facebook collects, stores, uses and profits from their users’ biometric information without consent or providing those users with written notice. It does so to hundreds of millions of people, including the Plaintiff. Facebook has developed and enhanced an algorithm allowing it to extract the biometric information of my face contained in photographs both uploaded onto Facebook and found externally throughout the Internet.

[30] The Plaintiff alleges that the face-scanning practices are illegal and resulted in a fine imposed by the U.S. Federal Trade Commission. Allegations that a party has committed criminal or regulatory offences are irrelevant and should be struck: Jevco Insurance Company v. Pacific Assessment Centre Inc., 2014 ONSC 2244, at para. 93.

[31] The Plaintiff makes a broad allegation that harm resulting from misidentification, can include individuals being excluded from economic and job opportunities and of individuals being investigated and detained by authorities. The Plaintiff does not specifically allege the material facts as to how he was affected by the facial recognition software.

[32] The Defendants made a demand for particulars regarding how the Plaintiff was personally affected by facial recognition. In his response, the Plaintiff stated he was misidentified as, “someone else with a criminal record, notorious reputation, deceased, being sued in civil court, targeted for murder, being the subject of a blood libel.” He did not provide any particulars of these claims stating that only Facebook would have the full detail of these incidents. The Plaintiff is required to plead details and specifics in his Claim and cannot hope that material facts will emerge as the case progresses: R. v. Imperial Tobacco Canada, Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 22.

ii. Data Mining Claims

[33] At paragraphs 51–83, the Plaintiff claims that the Defendants mined personal data belonging to users.

51. In the 2010s, personal data belonging to millions of Facebook users was collected without their consent by British consulting firm Cambridge Analytica, predominantly to be used for political advertising. The data was collected through an app called "This Is Your Digital Life", developed by data scientist Dr. Aleksandr Kogan and his company Global Science Research in 2013. The app consisted of a series of questions to build psychological profiles on users, and collected the personal data of the users’ Facebook friends via Facebook's Open Graph platform.

52. During the 2016 general election campaign in the U.S., millions of America voters were targeted with messages tailored to influence their votes. It was soon discovered that the targeting was achieved in large part using personal information obtained from Facebook users. The personal data was accessed without their knowledge or consent via the third-party application created by Dr. Kogan referenced in the Paragraph above. Dr. Kogan’s app was presented to Facebook users as an innocuous “personality quiz” collecting information purportedly for academic research, but was actually being used to harvest personal data for commercial purposes. Dr. Kogan sold the personal information to Cambridge Analytica which then used it to target U.S. voters on behalf of its clients.

53. According to Facebook estimates, the personal data of at least 87 million users was accessed and shared with Cambridge Analytica. This included some 622,161 Facebook users living in Canada - 272 of whom actually installed the Kogan app and another 621,889 “friends” whose personal data was obtained because the app gained “cascading access” to this information. The Plaintiff pleads that he may have been one of these affected individuals.

[34] The allegations are general and refer to “millions of Facebook users”. The Plaintiff references the fact that during the 2016 U.S. election, personal information was “harvested” and sold to Cambridge Analytica to target U.S. voters. At paragraph 58, he alleges that Ted Cruz and Donald Trump used the data to build “psychographic” profiles. The Plaintiff fails to allege any material facts linking himself to Cambridge Analytica.

[35] I am of the view that the data mining claims, as currently pleaded, have no reasonable prospect of success.

iii. Discrimination Claims

[36] At paragraphs 84-103, the Plaintiff claims that Facebook permitted advertisers to display discriminatory advertisements on the platform. The Plaintiff claims that Facebook “facilitates discrimination”.

84. Facebook is also responsible for ad discrimination which is illegal in Canada and has caused the Plaintiff damages. The Plaintiff claims that he looked for jobs on Facebook but was unable to see some available jobs simply because of his age. This is because Facebook allows employers to post ads that micro-target potential employees within specific age ranges. These microtargeted advertisements on Facebook include settings that prevent older workers from seeing an ad for a job for which they might qualify.

85. The Plaintiff estimates that approximately 60 percent of the Canadian job ads posted on Facebook were targeted at prospective workers in particular age ranges in a way that could violate the law unless the employer could show the restriction was necessary. The Plaintiff claims he was discriminated against for these prospective jobs based on his age and other factors.

[37] The Plaintiff’s allegations with respect to the discrimination claim are general and vague. The Plaintiff claims that he was discriminated against for prospective jobs based on his age (42) and other factors. He did not plead the material facts to support this broad allegation. He does not provide particulars as to the jobs that were advertised on Facebook that he applied for. The Defendants demanded particulars regarding how the Plaintiff may have been affected in his job search. He responded that he requires the Defendants’ records to provide the detail of how he was discriminated against. As noted earlier in this endorsement, the Plaintiff is required to plead details and specifics in his Claim and cannot hope that material facts will emerge in the discovery process: R. v. Imperial Tobacco Canada, Ltd., at para. 22.

[38] I am of the view that the discrimination claim, as currently pleaded, has no reasonable prospect of success.

iv. Facebook Security Breaches

[39] At paragraphs 104-126, the Plaintiff alleges that Facebook experienced security breaches over the years.

104. In 2018, Facebook announced that approximately 50 million user accounts worldwide were compromised in a massive security breach. Facebook has confirmed that, during the breach, millions of user accounts were hacked via a series of vulnerabilities in Facebook’s code relating to a video upload tool and the “View As” privacy tool. The hackers took advantage of these vulnerabilities to steal user access “tokens” and thus were able to seize control of affected user accounts and siphon off their Personal Information. Although Facebook discovered this breach on or about September 25, 2018, the video upload tool had been available on Facebook since July 2017.

105. The Plaintiff further pleads that there have been additional data breaches affecting his privacy rights similar to the ones described in this claim, the details of which the Plaintiff will seek to discover during the currency of this lawsuit.

[40] The Plaintiff makes the broad allegation that he was affected by the data breach. However, he does not plead the material facts as to the data that was breached or whether he was actually affected by a security breach. The Plaintiff pleads that he suffered damages from “hacked Facebook accounts” but does not provide particulars of any actual harm.

v. Private Messages Claim

[41] At paragraphs 127-143, the Plaintiff alleges that Facebook mined his private messages for personal information and sold it to third parties.

127. The Plaintiff pleads that Facebook mined his private Facebook messages for personal information and sold it to third parties. This mined data was also subsequently used to target him with advertising. Facebook garnered $2.7 billion from selling this sort of data in 2011 alone knowing that the popularity of Facebook hinges on the ability of its users to communicate with one another on their supposedly private messaging platforms.

[42] The Plaintiff’s claims are broad and general. He does not plead what private messages were “mined” or the damages he suffered as a result. The Defendants demanded particulars. In response, the Plaintiff stated that he had no particulars but intends to discover the information through the discovery process. The Plaintiff cannot proceed on the basis that further investigations will supply those facts: R. v. Imperial Tobacco Canada, Ltd., at para. 22; and Fibracast Ltd. v. Waterspin S.r.l., 2021 ONSC 2147, at para. 19.

vi. Data Selling Claims

[43] The Plaintiff makes the general and non-specific claim that Facebook has mined and sold his information to third parties.

[44] There are no particulars in the Claim as to the data the Plaintiff says was sold, or to whom. The Defendants demanded particulars with respect to this claim. The Plaintiff responded that he had no particulars, but “hoped” to learn more on the discoveries. As noted earlier in this endorsement, the Plaintiff cannot make vague allegations in the “hope” of discovering underlying material facts that support his claim, through the discovery process.

vii. Scams Claims

[45] At paragraphs 162-173, the Plaintiff claims that he is a victim of deceptive ads and scams hosted on Facebook.

162. Scams on Facebook have targeted millions of users, including the Plaintiff. The Plaintiff pleads that Facebook ought to be held responsible for these scams and pay me as a victim who fell for deceptive ads and scams hosted on its platform.

163. In sum, because Facebook prioritizes revenue growth over the safety of its users as a matter of corporate policy, Facebook users continues to be bilked out of billions of dollars by scammers while Facebook continues to collect billions of dollars in revenues from those same scammers. On the losing end of Factbook’s relationship with shady marketers are consumers such as myself, who effectively have no recourse when they’re tricked out of the money they spend through deceptive ads on Facebook’s platform.

[46] The Plaintiff does not plead any material facts as to the ways in which the Defendants encourage and assist scammers, or the scams or ads that he “fell for”. When particulars were demanded, the Plaintiff responded that it was difficult to provide details regarding the scams he fell victim to, but he saw millions of ads on Facebook as a user and “it stands to reason that some of them were scams and fraudulent”. He also stated that he needs access to the Defendants records to obtain particulars of any losses he may have suffered.

[47] This claim is vague. The Plaintiff has not alleged the material facts to support this allegation. As stated earlier, the Plaintiff cannot make vague allegations in the hopes of finding material facts to support his claim as the case progresses.

viii. Location Data

[48] At paragraphs 174–187, the Plaintiff claims that Facebook collects mobile device users’ location data without their knowledge or consent.

[49] The Plaintiff alleges that Facebook bundled his location information with other personal information. The Plaintiff does not plead any material facts with respect to the location data that was obtained from him or how he was affected by this. The Plaintiff does not plead a known cause of action for the use of his location data. In any event, the Data Policy sets out how and the extent to which the Defendants may process this information.

[50] It is my view the claim for breach of location data, as currently pleaded, has no reasonable prospect for success.

ix. Copyright Claims

[51] At paragraphs 188–200, the Plaintiff claims that the Facebook service allows third parties to link directly to pictures uploaded by the Plaintiff. He pleads that he is the owner of copyrighted works that have been unlawfully embedded by Facebook into the platform without his permission.

191 Facebook intentionally and brazenly encouraged, aided and induced third-party embedders to cause to be displayed copyrighted photos and videos without making any effort to control or stop the rampant infringement occurring on its platform, while knowingly participating in such conduct. Facebook did all this so as to maximize its insatiable drive for user volume and the resulting advertising revenue. The more Facebook could induce and encourage third parties to embed copyrighter works from Facebook, the more revenue Facebook generated from traffic and advertising revenue.

[52] The Plaintiff does not allege that Facebook infringed his copyright. He pleads that Facebook’s users are infringing his rights. He does not plead the material facts to support this claim. He does not state what works he says were misused by third parties. Again, the Plaintiff appears to be “hoping” that particulars to support this allegation will be unearthed as the action progresses.

x. Facebook Sponsored Stories

[53] At paragraphs 201-209, the Plaintiff claims that when he “liked” a post, the Facebook service “used” his likeness and name so other users could see that he liked a post. The Plaintiff does not plead the material facts of the advertisements he liked, or the users who received the sponsored story. He does not state how he suffered damages as a result.

xi. Facebook Facilitating and Encouraging Rigged Gambling

[54] At paragraphs 210-219, the Plaintiff claims that Facebook offered free casino games to make illicit profits and to turn Facebook users into gambling “junkies”.

210. Facebook offers free-to-play casino games to its users, knowing they are outright illegal in California, the state of Washington and other jurisdictions in North America. These games were created to make illicit profits in league with extraterritorial third-party gambling houses and to turn Facebook users into gambling junkies who become even more addicted to the Facebook Platform. Facebook entered into dangerous partnerships with these game developers in order to make easy money, despite knowing the risk of their users losing serious money.

[55] At paragraph 219, he vaguely claims that he has been a victim of these games himself. He does not provide any particulars with respect to the games he played, the number of times he played the games, or the money he lost. There is nothing in the claim that links the vague allegations with respect to the gambling sites and the Plaintiff. In response to the demand for particulars, the Plaintiff stated that he had no details.

xii. Invasion of Privacy (Intrusion upon Seclusion) and PIPEDA

[56] At paragraphs 244-245, the Plaintiff claims violation of the right to privacy. At paragraphs 249-259, he pleads breach of PIPEDA .

[57] The Plaintiff makes broad and general claims that the Defendants’ activities have been performed “on a large scale against millions of other people in Canada and throughout the world”. The Plaintiff claims that the Defendants did not seek his consent or the consent of other individuals to collect data. This is not a class action and how others may have been affected is not material. The Plaintiff does not provide any material facts as to the personal information that was breached or the damages he suffered as a result.

[58] The Plaintiff also makes a broad allegation that under the PIPEDA framework, the Defendants did not have an “appropriate purpose for the covert biological information extraction of potentially billions of people, including children, underage women and the disabled.” PIPEDA requires an organization to report to the Privacy Commissioner any breach of security safeguards involving personal information. The Privacy Commissioner is not empowered to award damages. If a person makes a complaint to the Privacy Commissions, then the complainant may have a hearing in the Federal Court. The Federal Court, and not the Superior Court, has authority to award damages for violations of PIPEDA : Del Giudice v. Thompson, at paras. 158-160.

[59] To establish the tort of intrusion upon seclusion, the Plaintiff must plead the elements of the cause of action: (1) the defendant without lawful justification intrudes psychically or otherwise on the seclusion of the plaintiff in his private affairs or concerns, (2) the defendants’ intrusion is intentional and (3) the invasion would be highly offensive causing distress humiliation or anguish. The tort of intrusion upon seclusion is only for significant invasion of personal privacy that viewed objectively, a reasonable person would regard as highly offensive: Del Giudice v. Thompson, at paras. 132-133.

[60] The Plaintiff does not provide any particulars as to the alleged intrusions, or how those intrusions resulted in a significant invasion of personal privacy. It is my view that the claims for intrusion upon seclusion are not adequately plead. Also, the Terms of Use which were incorporated by reference into the Claim, addresses the uses that can be made of the personal information. It is my view that based on the current pleading, there is no reasonable prospect of success for the intrusion of seclusion claim: Del Giudice v. Thompson, at paras. 133, 139.

xiii. Illicit Database Claims

[61] At paragraphs 246-247, the Plaintiff makes an allegation that the Defendants created an illicit database. The allegations are particularly vague and difficult to understand.

246. The Defendants engaged their liability towards me by willfully creating, facilitating, enhancing and obtaining access to its illicit database which contains my personal biometric information and other private information.

247. In addition, Facebook was negligent when it created, populated, aided, abetted and sought access to an informational database and in using it prior to assessing whether these tools were legal and, since they contained personal biometric information, whether Facebook disclosed its activities, and the creation and the existence of its database to competent authorities (which it did not).

[62] The Plaintiff failed to allege the material facts to support a cause of action. He does not plead how he was affected by the informational database and fails to plead that he sustained any compensable damages as a result of the creation of the database. Although he uses the word negligence, he does not plead the elements of a cause of action in negligence.

[63] I am satisfied that the illicit database claim, as currently pleaded, has no reasonable prospect for success.

xiv. Charter Remedies

[64] At paragraphs 260-264, the plaintiff seeks three sets of remedies from the court with respect to the Defendants’ violations of his Charter rights. He seeks a monetary award for the Charter damages sustained. He also seeks “vindication” and “deterrence”.

[65] The defendant is a private company. The Charter does not apply to actors in the private sector: Del Giudice v. Thompson at para. 161 (c); and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, at para. 78. In argument, the Plaintiff conceded that there is no claim based on a Charter breach and he is willing to drop this claim.

xv. Trespass

[66] At paragraphs 265-272 the Plaintiff pleads that the Defendants have intentionally or recklessly intruded or trespassed upon the Plaintiff to collect his personal information and metadata. I am not satisfied that intangible or electronic data can form the basis for a claim in trespass: Del Giudice v. Thompson, at para. 178. In any event, the Plaintiff failed to provide particulars with respect to what was trespassed. He advances the broad and vague allegation that the Defendants, “converted the Facebook Platform into a biometric extraction machine.”

[67] I am of the view that the claim in trespass, as currently pleaded, has no reasonable prospect of success.

xvi. Conversion

[68] At paragraphs 273-277, the Plaintiff claims that the Defendants converted his personal information for their own use. As in the case of the claim in trespass, I am not satisfied that intangible or electronic data can form the basis for a claim in trespass: Del Giudice v. Thompson, at paras. 169-181. In any event, the Plaintiff failed to provide particulars as to the specific property he says was converted or how the use of the converted information was used to intrude upon his affairs. He does not allege that his property was damaged.

[69] I am of the view that the claim in conversion, as currently pleaded, has no reasonable prospect of success.

xvii. Breach of Competition Act and Consumer Protection Laws

[70] At paragraphs 293-297 the Plaintiff claims that the Defendants breached s. 52 of the Competition Act . At paragraphs 299-302, he alleges that Facebook committed unfair practices under s. 18(11) of the Consumer Protection Act ( CPA ).

[71] The Plaintiff states that he was misled by the Defendants but does not provide any particulars about how he was misled. He states that the Defendants’ disclosures were “objectively and uniformly false and misleading” but does not point to the specific disclosures that he says were false. He does not plead that he suffered actual damages as a result. In his particulars, the only damage referred to is that he “conducted dozens of hours of research”.

[72] With respect to the claim for breach of consumer protection laws, the Plaintiff pleads that the Defendants committed unfair practices by making misrepresentations. However, he does not provide any particulars explaining what misrepresentations were made to him or how he suffered damages as a result.

[73] The CPA allows a consumer to claim damages for beach of a consumer agreement with a company within one year of entering into the breached consumer agreement. There are no particulars in the claim with respect to the consumer agreement the Plaintiff says was breached or when the agreement was entered into. If he is referring to the Terms and Conditions when he opened his Facebook account in 2008, he failed to commence the action within one year.

[74] I am of the view that the claims for breach of the Competition Act , and Consumer Protection Act , as currently pleaded, have no reasonable prospect of success.

xviii. Unjust Enrichment

[75] At paragraphs 303-306, the Plaintiff pleads that the Defendants have been unjustly enriched to the extent that they have retained revenues from the collection, retention, or use of his personal information. The Plaintiff does not provide particulars with respect to this claim. He states only that the enrichment represents a corresponding deprivation. He does not specify an actual corresponding economic loss: Kish v. Facebook Canada Ltd. 2021 SKQB 198 at para. 77.

[76] I am of the view that the claim for unjust enrichment, as currently pleaded, has no reasonable prospect of success.

xix. Fraudulent Concealment

[77] At paragraphs 307-310, the Plaintiff alleges that the Defendants intentionally and fraudulently concealed the existence of their unlawful conduct from the public including the Plaintiff. Fraudulent concealment is an equitable doctrine to prevent limitation periods from being used for injustice: Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, at paras. 19-21. The Plaintiff does not plead what information was concealed, or what limitation period was breached.

[78] I am satisfied that the claim in fraudulent concealment, as currently pleaded, has no reasonable prospect for success.

Summary

[79] I am satisfied that the Plaintiff’s Claim offends the basic rules of pleading. It is not a concise statement and is overly broad and unspecific. In many ways, the Claim is similar to a class action, in which the Plaintiff makes claims on behalf of all users of Facebook. The Claim contains sweeping allegations regarding the Defendants’ general business operations. The Claim does not focus on how the Plaintiff was personally affected by the Defendants’ conduct. The Plaintiff fails to plead the material facts to support many of the claims advanced.

[80] In Covello v. 2624221 Ontario Inc., 2022 ONSC 5467, Boswell J. struck out a claim that was 60 paragraphs long and over 29 pages. The Plaintiff was self-represented. Although the pleadings are to be read liberally and generously, particularly when drafted by a person without legal training, Boswell J. found that the claim was simply too broad, meandering and confusing. In striking the claim he stated:

Rule 25.06 sets out the basic requirements of a pleading. It says that every pleading is to contain a concise statement of the material facts on which the party relies for the claim or defence. The plaintiff’s claim offends this rule.

Permitting the claim to stand in its present form would result in litigation that is almost entirely unmanageable. The issues for trial are ill-defined and discovery – both documentary and oral – would be a nightmare.

It is well -settled that a statement of claim should serve the following functions:

(a) It should define with clarity and precision the question in controversy;

(b) It should give fair notice to the defendant of the precise case to be met and the precise remedies sought; and,

(c) It should assist the truth-finding function of the process.

See McCarthy Corp. PLC v. KPMG LLP, [2005] O.J. No. 3017, at para. 20, citing National Trust Co. v. Furbacher, [1994] O.J. No. 2385 at para. 9.

Ms. Covello’s claim, as drafted, serves none of these identified functions.

Rule 25.11(a) grants the court discretion to strike out a claim or expunge parts thereof, with or without leave to amend, on the ground that the pleading may prejudice or delay the fair trial of the action.

It is not reasonably possible for me to expunge only portions of the claim. To the extent that there may be a legally viable claim within Ms. Covello’s pleading, it is so inextricably intertwined with problematic content that I am unable to save it. The claim must be, and is, struck out in its entirety. It is unduly prolix, confusing, and more than likely to delay the fair trial of this action: at paras. 38-43.

[81] I am of the view that the dicta from Covello applies in the circumstances of this case. For the reasons set out above, I am satisfied that the Claim is prejudicial, scandalous, frivolous and vexatious. The Claim is vague, confusing and prolix. The Plaintiff failed to plead material facts to support the many of the claims advanced. To paraphrase Boswell J., there may be a viable claim within the pleading, but it is so “intertwined with problematic content” that it cannot be saved. I am of the view that it is not reasonably possible to expunge only portions of the claim. I strike the Claim in its entirety.

[82] Where a claim is struck out, leave to amend the pleading should only be denied in the clearest of cases where it is plain and obvious that no tenable cause of action is possible on the facts alleged. The usual practice is to grant the plaintiff leave to amend unless it is clear that the plaintiff cannot improve its case by any further and proper amendment: Del Giudice v. Thompson, at para. 60.

[83] While I have concerns as to whether the claims advanced by the Plaintiff have a reasonable prospect of success, the Plaintiff may be able to improve his case by a proper amendment. I grant leave to the Plaintiff to deliver a Fresh as Amended Statement of Claim. The Fresh as Amended Statement of Claim must clearly set out the causes of action and plead the material facts that support each cause of action. The Plaintiff must avoid making scandalous allegations designed to prejudice the Defendants or make irrelevant and argumentative allegations that are inserted only for colour. The Plaintiff must comply with Rule 25.06(1).

DISPOSITION

[84] I allow the Defendants’ motion, in part. The Plaintiff’s Claim is struck in its entirety, with leave to amend.

[85] The Defendants are primarily successful on the motion and are presumptively entitled to their costs. The Defendants filed a Bill of Costs in which it seeks its partial indemnity costs in the amount of $31,234.65 inclusive of counsel fee, disbursements and HST. The Plaintiff did not file a Bill of Costs.

[86] If the parties are unable to agree on costs, the Defendants may deliver written costs submissions within 15 days of the date of this endorsement. The Plaintiff may deliver written cost submissions in response within 15 days of receiving the Defendants’ submissions. The submissions for both parties are limited to 3 pages, excluding Bill of Costs, Offers to Settle and caselaw.

Date: February 27, 2023