Recently, there was extensive media coverage of a US district court’s refusal to certify a proposed privacy class action against Google (see one such article HERE). The case alleged that Google had intercepted and read users’ emails, and mined the content of those emails for targeted advertising. Plaintiff’s counsel had argued that the case could give rise to the highest award of damages in any class action, anywhere, to date.
Does the US court’s refusal to certify mean no such case will be filed or certified in Canada?
The US court’s refusal to certify the action in the US certainly makes a Canadian class action less likely. Canadian class actions often follow after US class action actions, and so certification, settlement or success on the merits of the case, or any of these, make subsequent Canada cases more likely, and the contrary is also true.
However, there can be significant differences between the substantive law of Canadian and US jurisdictions. These differences mean that certain types of cases, where Canadian and US law are more similar, are more prone to “copycat” Canadian class actions. Areas of such similarity include common law allegations, like product liability and breach of contract, rather than allegations that depend on breaches of legislation that may differ more between the jurisdictions. The Google case involved allegations of breaches of US privacy legislation.
Although Canadian class action statutes were originally modeled on the US Rule 23 of the Federal Rules of Civil Procedure, there are also differences between the procedural class action law in Canadian jurisdictions and the US. Some of these differences include:
- Canadian class actions need not fulfil the US “numerosity” requirement – in BC, for example, the class must simply consist of “two or more” class members;
- There is no Canadian requirement of “typicality” as required in the US (an analysis essentially involving a comparison of various class members’ claims and defences); and
- There is no Canadian requirement of “predominance” as required in the US (an analysis essentially involving an assessment of whether common issues predominate over individual ones).
These differences, as well as trends in the decisions governing how the procedural requirements are to be interpreted, have resulted in a generally much lower certification standard in Canada than in the US.
Therefore, for Canadian defendants, it is worth watching developments in US class actions, but one cannot assume a US result will carry the day in Canada.