On August 21, 2026, the BC Court of Appeal (the “Court”) affirmed a 2025 decision of the BC Supreme Court declining to certify a proposed class proceeding brought against The Cadillac Fairview Corporation Limited (“CFCL”). The claim alleged that CFCL’s deployment of anonymous video analytics (“AVA”) technology during a limited pilot project had resulted in the invasion of mallgoers’ privacy.[1] In a unanimous decision, the Court rejected this fundamental premise. Dentons Canada acted for CFCL at both levels of court.
Background
Between May and July 2018, CFCL piloted AVA technology in certain malls that it owns and operates. The AVA technology worked with cameras located in wayfinding directories to anonymously count the number of visitors to those malls and estimate rough gender and age ranges for each visitor. The project lasted for eight weeks and ended on July 25, 2018, in response to misinformation circulating online and erroneous media reports suggesting that the Software was “facial recognition” technology.
On October 28, 2020, the Office of the Privacy Commissioner of Canada, the Office of the Information and Privacy Commissioner of Alberta, and the Office of the Information and Privacy Commissioner of British Columbia issued a report (the “OPC Report”) finding that CFCL was responsible for creating “unique biometric identifiers” without notice or consent, contrary to private sector privacy legislation. A proposed class action was subsequently launched in British Columbia.
BC Supreme Court
At the core of the claim was an allegation that CFCL had been responsible for the creation of personal information in the form of biometric identifiers, thus invading the privacy of mallgoers. In reasons for judgment issued May 15, 2025,[2] Justice Forth of the BC Supreme Court dismissed the plaintiffs’ application for certification in its entirety. Justice Forth found there to be no basis in fact for this central allegation, such that none of the evidence-based criteria under BC’s Class Proceedings Act (the “CPA”) were satisfied.[3]
Privacy Commissioner Report cannot supply “some basis in fact”
In so finding, Justice Forth rejected the plaintiffs’ argument that the OPC Report, along with expert evidence that relied in part on the OPC Report, ought to have supplied the requisite evidentiary basis those criteria. Notably, she found that in the absence of any basis in fact for the plaintiffs’ central allegation, that there was no need for behaviour modification and no evidence of demonstrable harm; such a class proceeding would not be the preferable procedure for a fair and efficient resolution of the common issues.
The Appeal
The plaintiffs’ primary argument on appeal was that Justice Forth had erred in law in her assessment of the OPC Report (and thus the plaintiffs’ expert evidence), such that she had also erred in her determination on the evidence-based CPA criteria. In a somewhat unusual strategy, they did not appeal Justice Forth’s assessment of the preferable procedure criterion. Instead, they argued that the Court ought to reverse the finding on the OPC report and remit the issue of preferable procedure back to the Supreme Court.
No facial images or biometric and personal information
In a terse, unanimous decision, the Court dismissed the appeal in its entirety, holding that the material before Justice Forth provided no basis in fact for the proposition that facial images or biometric and personal information was recorded by CFCL, and that as the that proposition was “essential to the claim, the judge was right to deny certification”.
Class proceeding not the preferable procedure
Further, the Court of Appeal held that even if the appellants had been successful on that issue, the appeal could not have been allowed due to their failure to challenge Justice Forth’s determination that a class proceeding was not the preferable procedure. The Court of Appeal noted that in addition to being a technical legal issue, the appeal could not have borne out having regard to Justice Forth’s “unassailable” reasoning that, given the lack of evidence of any harm to any proposed class members, a class proceeding would not be efficient from a judicial economy perspective, nor would there be any systemic or social benefit to pursuing a class proceeding. The Court of Appeal concluded “[Justice Forth’s] reasons provide a sound basis for the conclusion that a class proceeding is not proportional to the matters in issue.”
BCCA affirms court’s gatekeeping role
Importantly, the BC Court of Appeal reaffirmed the courts’ gatekeeping role at certification. Courts hearing certification motions have traditionally somewhat reluctant to closely scrutinize claims and apply the class proceeding test rigorously, preferring to leave bordeline issues to the ultimate trier of fact. Courts have started demonstrating an increased willingness to prune untenable claims, and the strong endorsement of this gatekeeping role by the Court of Appeal suggests increased scrutiny of putative class actions.
Takeaways
The Decision is a demonstration of the deference that appellate courts will afford a certification judge’s findings of fact. The Court of Appeal evidently found Justice Forth’s findings sufficiently comprehensive that it did not see any merit in opining on the specific use that can be made of a report from the OPC on certification. The implication, however, is that such a report will not itself be enough to supply the necessary basis in fact in the absence of any other evidence. Further, the Decision is a cautionary tale for litigants who seek to take a piecemeal approach to appeals of certification decisions. The Court was not willing to entertain the plaintiff’s approach of deferring an appeal on the preferable procedure criterion.
For more information on this topic, please contact Kirsten Thompson, Mark Evans, Emma Irving, Luca Lucarini or other members of the Dentons Privacy and Cybersecurity group.
[1] Cleaver v. The Cadillac Fairview Corporation Limited, 2026 BCCA 353 (the “Decision”).
[2] Cleaver v the Cadillac Fairview Corporation Limited, 2025 BCSC 910
[3] RSBC 1996, c. 50.
