The Ontario Superior Court recently declined to certify the proposed class action in Donegani v. Facebook, Inc., 2025 ONSC 6020 citing the absence of evidence for compensable loss. Justice Akbarali underscored that certifying a class proceeding without proof of compensable harm fails to advance access to justice or judicial efficiency.
In this case, the plaintiffs acknowledged the improbability of pecuniary damages and emphasized that their claim sought only nominal damages. The Court found this inadequate to meet the threshold for certification.
Background
The proposed class action alleges that Facebook breached its user agreements by sharing user data with third-party applications and device manufacturers. After multiple hearings since 2022, including an adjournment granted to the plaintiffs to secure additional evidence and amend their claim, Justice Akbarali issued preliminary rulings in 2024 regarding common issues and causes of action. The plaintiffs were instructed to refine the class definition and address concerns about the manageability of the class and whether it was the preferable procedure.
Notably, the plaintiffs acknowledged the unlikely existence of compensatory damages and proposed disclaiming them in favour of nominal damages if certification were granted on that basis.
Court’s Decision on Certification
Justice Akbarali ruled that the class proceeding was not the preferred method for resolving the dispute primarily due to the lack of evidence supporting compensable loss, a prerequisite emphasized by the Supreme Court of Canada and reiterated by several Ontario decisions. Even with the plaintiffs’ disclaimer of compensatory damages, there was no evidentiary basis for such damages on the record.
The judgment highlighted several key points: the absence of compensable loss undermined access to justice objectives, judicial resources are better allocated elsewhere in the absence of tangible harm, and regulatory avenues may be more effective in encouraging corporate behaviour changes than litigation under these circumstances.
Moreover, the proposed class action failed the preferable-procedure test because the plaintiffs’ litigation plan anticipated numerous individual issues that would complicate fairness, efficiency, and manageability. This concern was heightened given the vast potential class size, consisting of millions of individuals, making the absence of compensable loss particularly problematic.
The Court also rejected the plaintiffs’ class definition as deficient, both overly broad and underinclusive, and found it would require intrusive discovery into individual circumstances to determine who properly belonged in the class.
Key Takeaways
The Donegani decision aligns with a growing judicial trend emphasizing rigorous gatekeeping at the certification stage, especially where only nominal damages are alleged. It affirms that class actions lacking evidence of compensable loss fail to meet fundamental certification criteria and do not fulfill the goals of promoting access to justice or judicial efficiency.
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