Written By Jackson Spencer and Paige Lutz

In Cleaver v The Cadillac Fairview Corporation Limited, 2025 BCSC 910, the BC Supreme Court refused to certify a class proceeding alleging privacy breaches of biometric data, concluding that the plaintiffs had failed to establish an identifiable class. In 2018, the defendant Cadillac Fairview Corporation Limited (Cadillac Fairview) installed cameras equipped with third-party Anonymous Video Analytics software (the Software) in Canadian mall directories to estimate visitor counts and basic age and gender demographics. Warnings that visitors may be recorded and reference to an online privacy policy were posted at mall entrances, but there was no warning on directory screens.

The application for certification was dismissed, however, because there was no basis in fact that the Software recorded facial images or used them to create biometric and personal information about class members. This meant there was no identifiable class, no basis in fact for the proposed common issues and a class action was not the preferable procedure.

Regarding the requirement for an identifiable class, the court found there was no factual basis that class members could self-identify with the proposed class definition of all individuals who “viewed a wayfinding directory” during the applicable time periods. Second, the Court held there was no rational relationship between the class definition and the common issues because there was no evidence that everyone who viewed a wayfinding directory had their face recorded.

Given these limitations, the Court determined that a class action was not the preferable procedure for resolving the common issues due to the lack of common issues, demonstrable harm or need for behaviour modification.

Have time to read more?

• Federal and provincial Privacy Commissioners investigated and determined that Cadillac Fairview had collected biometric information, even though they did not retain the original images.
• The Court found that the following claims had been sufficiently pleaded but were ultimately unsupported by the evidence: (i) intrusion upon seclusion in Ontario and Manitoba; (ii) breach of the statutory invasion of privacy torts in British Columbia and Manitoba; and (iii) and failing to disclose the creation of a database of biometric characteristics to the appropriate Commission within 60 days under Québec law.
• To read more about class actions involving breaches of privacy, see our blog “Legal Uncertainty for Database Defendants? Appeal Courts Assess Privacy Causes of Action With Varying Outcomes.”