|
Federal Court - Appeal - Remedies. Doan v. Clearview AI Inc.
In Doan v. Clearview AI Inc. (Fed CA, 2025) the Federal Court of Appeal allowed an appeal of an order "dismissing her motion to certify the underlying action as a class proceeding pursuant to Rule 334.16(1) of the Federal Courts Rules", finding that the plaintiff "had not established some basis in fact that there is an identifiable class of two or more persons in the proposed proceeding".
Here the court considers appellate remedies, here whether remitting or deciding the case itself are appropriate:[44] Ms. Doan requests that the Court certify the underlying action in reliance on subparagraph 52(b)(i) of the Federal Courts Act, R.S.C., 1985, c. F-7. The relevant factors in determining whether to decide the motion or send it back to the Federal Court include whether the outstanding issues are factually voluminous and complex, whether they involve oral or documentary evidence and involve the assessment of credibility, whether the result is uncertain or factually suffused, whether the parties have had the opportunity to make specific submissions on the issues that remain to be decided, and whether the additional delay caused by sending the matter back would be contrary to the interests of justice (Ghermezian v. Canada (National Revenue), 2023 FCA 183 at para. 62, leave to appeal to SCC refused, 40987 (May 16, 2024), citing, among other authorities Sandhu Singh Hamdard Trust v. Navsun Holdings Ltd., 2019 FCA 295 at paras. 59-60 and Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17 at paras. 175-178, 182).
[45] It is apparent that there are complex evidentiary and legal questions left to resolve in Ms. Doan’s motion for certification, including issues identified in these reasons regarding Rule 334.16(1)(b). Further, the remaining conditions for certification in Rule 334.16(1), and the parties’ submissions in relation to those conditions, have not been considered. In my view, the appropriate forum for resolution of those issues is the Federal Court and I decline Ms. Doan’s request that the Court render the judgment that ought to have been made. I would also leave to the Federal Court the scheduling of what may be a lengthy hearing but encourage the hearing be scheduled as soon as feasible to minimize delay.
|
