Simpson v Facebook: Denial Of Certification Upheld By Divisional Court

This article was originally published by the Ontario Bar Association.

The recent decision inSimpson v Facebook Inc. ¹ brings an end to one of several proposed class actions arising from the Cambridge Analytica scandal.² On March 1, 2022, the Divisional Court affirmed an order denying certification of a proposed privacy class action against Facebook. The motion judge denied certification on the basis that there was no evidence for the "core allegation" that Canadian Facebook user's personal data was actually shared with Cambridge Analytica, and thus no basis in fact for the proposed common issues.³

The Divisional Court's decision

Justice Bell, writing for the Court, reaffirmed that certification decisions are entitled to substantial deference.⁴ He held that the motion judge did not err in his application of the certification test or in his interpretation of the carriage order.⁵ Nor did he commit a palpable and overriding error in finding that there was no