The underlying claim in Albilia v Apple Inc, 2013 QCCS 2805, is that Apple allowed thrid-party providers of applications for iPhones and iPads to have access to a whole range of personal information of the owners of the devices, including their home and workplace locations, age and sex, places where geolocation apps were used, functions performed, search terms used, names of songs downloaded… . Apple argued that the class action should not be certified because the ‘infinite variety’ of potential sub-classes would defeat the goal of class proceedings in promoting economy and efficiency.

The class action has been certified in Quebec by Nollet J. While broad, the class of plaintiffs was not so much so as to be unworkable and could be refined through the creation of sub-classes. The only sub-class required at the outset would be one for users of geolocation apps. There was a sufficient factual basis, as pleaded, for the allegations; the claim was not manifestly doomed to fail. The fact that the proposed representative plaintiff did not himself own an iPad was not an obstacle to his suitability to represent the class as a whole; he has an iPhone with apps that raise similar issues. The claim is based, in part, on class proceedings in the US. It is likely that similar proceedings will be brought in other Canadian provinces (if they haven’t already).

Also, an update on our February 21 discussion of R. v. Fearon on July 11, the Supreme Court of Canada granted leave to appeal limited to the issue of the cell phone search.