BC Court of Appeal: 
No Basis in Fact = No Class Action

In Cleaver v. The Cadillac Fairview Corporation Limited, 2026 BCCA 353, the BC Court of Appeal reaffirmed the courts’ gatekeeping role at certification and upheld the chambers judge’s refusal to certify a privacy class action because the plaintiffs had not put forward any basis in fact for the central allegation in the claim.

As summarized in our post about the certification decision, the chambers judge below found that three of the five certification criteria were not satisfied because the plaintiffs had put forward no evidence that the defendants’ shopping mall directory software actually recorded proposed class members’ facial images and converted them into biometric data as alleged. The Court of Appeal agreed: "the material before the court provided no basis in fact for the proposition that facial images or biometric and personal information was recorded by the respondents. As that proposition is essential to the claim, the judge was right to deny certification".

The Cleaver decision is significant in light of the recent debates in British Columbia over what the plaintiff’s evidentiary burden to show "some basis in fact" requires. Cleaver is a clear message from this province’s appellate court that, if there is no basis in fact for the central allegation in the claim, the goals of a class proceeding will not be served and certification should be denied.

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• The Court of Appeal would also have denied the appeal because the plaintiffs failed to appeal the certification judge’s finding that a class action was not the preferable procedure. As the certification test is conjunctive, the judge’s finding that this criterion was not satisfied precluded certification of the action as a class proceeding.
• The Court of Appeal in any event endorsed the certification judge’s reasons on preferability. There was no evidence of any harm to proposed class members, and none of the goals of a class proceeding would be served in the absence of any basis in fact for the central allegation.
• The Court of Appeal did not disturb the certification judge’s conclusion that an Office of the Privacy Commissioner report was hearsay and not admissible for the truth of its contents, or her decision to disregard portions of the plaintiffs’ expert opinions that were based on speculation or outside the scope of the expert’s qualifications.
• To read more about Canadian courts’ applications of the "some basis in fact" standard, see our article "Some Basis in Fact for the Common Issues: Courts Continue to Apply and Refine the Test".