IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140930

Docket:  S112969

Registry:
Vancouver

Between:

Amanda Elizabeth
Ladas

Plaintiff

And:

Apple Inc.

Defendant

Brought
under the Class Proceedings Act, R.S.B.C. 1996, c. 50

Before:
The Honourable Madam Justice Adair

Reasons for Judgment

1.  Introduction. 2

2.  Factual
Background. 3

3.  Objections
to the Plaintiff’s expert reports. 8

4.  The
Certification Requirements – Overview. 13

5.  Do
the plaintiff’s pleadings disclose a cause of action?. 15

(a)  The
breach of privacy allegations. 17

(i)  The
claim under the Privacy Act (B.C.) 18

(ii)  The
tort claim for breach of privacy. 20

(iii)  Does
the Privacy Act (Canada) or legislation from other Provinces provide a
legal basis for any cause of action?. 24

(iv)  Summary
re breach of privacy allegations. 27

(b)  The
Sale of Goods Act 27

(c)  The
claim under the BPA. 28

(d)  The
claim for aggravated damages. 32

(e)  Summary
concerning s. 4(1)(a) 33

6.  Identifiable
Class and Class Description:  s. 4(1)(b) 34

7.  Common
Issues – s. 4(1)(c) 43

8.  Preferable
Procedure – s. 4(1)(d) 49

9.  The
representative Plaintiff and Litigation Plan – s. 4(1)(e) 49

10.  Summary
and Disposition. 52

1.       Introduction

[1]            
The plaintiff, Amanda Ladas, seeks certification of a class proceeding
against the defendant, Apple Inc., in relation to mobile communication and
media devices that use an operating system described as “iOS4.”  The devices in
issue are the iPhone 4, iPad, iPod, iPhone 3G and iPhone 3GS.  I will refer to
these as the “iDevices.”  The plaintiff’s claims concern the “Location
Services” capabilities of iDevices using the iOS4 operating system.

[2]            
Ms. Ladas alleges that Apple designed and produced iOS4 so as to record
and store locational data on iDevices in unencrypted form, for long periods of
time, and to copy the unencrypted data onto computers when iDevices were being synchronized. 
The plaintiff says that, as a result, her privacy, and the privacy of proposed
class members, has been breached.  She says in addition that Apple’s conduct
constitutes a deceptive act or practice under the Business Practices and
Consumer Protection Act, S.B.C. 2004, c. 2 (the “BPA”).

[3]            
The plaintiff seeks certification of a class described as:

All persons in British Columbia and elsewhere in Canada who
have purchased an iPhone 4, iPad or iPod as well as iPhone 3G and iPhone 3GS
that utilizes the software operating system known as iOS4.

[4]            
Apple says that none of the requirements under s. 4(1) of the Class
Proceedings Act, R.S.B.C. 1996, c. 50, has been satisfied, and,
accordingly, the certification application must be dismissed.

2.       Factual Background

[5]            
The plaintiff’s evidence filed in support of the certification
application included:

(a)      two
affidavits sworn by her (and on which she was cross-examined); and

(b)      affidavits
sworn by persons whom the plaintiff is tendering as experts to provide opinion
evidence:  Mr. Francis Graf, Dr. Kim Rossmo, Mr. Eric Smith and Dr. Michael
Elterman.

[6]            
In opposition to the certification application, Apple filed an affidavit
from Mr. Mark Buckley, a legal finance manager at Apple, and two affidavits
from Mr. Ronald Huang, a senior engineering manager in the iOS group at Apple. 
Mr. Huang describes at some length iDevices and the iOS operating system
(including the various versions of iOS4 and new versions after iOS4) and how
the “Location Services” feature works.

[7]            
Apple objects to the admissibility on the certification application of
all of the affidavits of the plaintiff’s experts.  Dr. Elterman’s affidavit
(which purported to provide opinion evidence on the question of informed
consent) was withdrawn at the hearing, and so I will not discuss it further.  I
will discuss the objections to the other affidavits after reviewing some of the
factual background.

[8]            
Ms. Ladas is an administrative assistant.  She says that in December
2010, she and her young son both received an iPod Touch as Christmas gifts. 
She says further that in April 2011, she purchased an iPhone 4.  Ms. Ladas
explained her reason for purchasing the iPhone was that, although she had been
a Blackberry user, her office moved to the iPhone.  She did not recall where
she purchased her iPhone, but she believed it was at the Apple Store in
Richmond B.C.  I will refer to all three devices as Ms. Ladas’s “iDevices.”

[9]            
Ms. Ladas says that her iDevices all “utilize a software operating
system known as iOS4.”  She says that when she purchased her iPhone4, the
customer representative set it up for her.  Ms. Ladas did not recall asking the
representative any questions about privacy, functions or geolocation, and she
did not recall any conversation about whether she wanted Location Services on
or off.

[10]        
Mr. Huang describes in detail, from his perspective as an Apple
engineer, how Location Services works.  He says, for example, that Location
Services uses location information obtained from the iDevice’s GSP chip (if
available) and location information about nearby Wi-Fi hotspots and cell tower
locations, to determine the iDevice’s location.  He says that when a user
chooses to use, and consents to run, a “Location-Aware App or Service,” that
App or service must request the iDevice’s location from Location Services.

[11]        
Mr. Huang says that, before an iDevice’s approximate location may be
provided to an App or service, the Location Services setting on the user’s
iDevice must be turned “on,” and the user must “affirmatively consent” to
permit the App or other service to access the location data.  Mr. Buckley says
further that every time a user updates the version of iOS running on the user’s
iDevice, the user is prompted to decide whether the user wants to use Location
Services by accepting the terms of Apple’s software licensing agreement.  Apple
relies on users taking such steps in its defence of the plaintiff’s claims.  The
legal effect of a user clicking on “consent” or “allow” or “ok” or “I agree”
would be an issue on the merits in this action.

[12]        
Mr. Huang says that, through the ‘‘Location Services’’ toggle switch of
the user’s iDevice, Apple provides individual users with the ability to control
the Location Services capabilities of their iDevices.  He says that every user
may, at any time, move the switch on the Location Services menu on the iDevice
to “off,” and this immediately terminates any use of Location Services.

[13]        
Ms. Ladas says she actively used her iDevices and backed up their
contents to her desktop computer.  Ms. Ladas recalled that she updated the
software on her iPhone when she was prompted to do so.

[14]        
Ms. Ladas says that, after she started using her iDevices, she read
various reports on the Internet that alleged that Apple “was tracking my
whereabouts through my iDevices.”  Although Ms. Ladas could not recall doing
so, she believed that, as a result of reading these reports, if she had been
prompted about Location Services when updating the software on her iDevice, she
would have turned Location Services off.  She says that she also read that
“this information was stored in unencrypted form in my iDevices and on any
computers that I backed them up to, and could easily be accessed by anyone.”

[15]        
Ms. Ladas says that as a mother of two young children she became
concerned about the safety and security of her family.  She says:

I did not appreciate that, without my permission, anyone can
find out where I have been.  I consider my and my family’s comings and goings
personal, private and sensitive information.

[16]        
On cross-examination, Ms. Ladas was asked what she meant by her
statement that “anyone can find out where I have been.”  She explained that she
drew this conclusion from reading the expert reports, in particular Mr. Graf’s
analysis.

[17]        
Ms. Ladas says that, when she and her son activated their iPod Touch
devices, and when she purchased, activated and started using her iPhone 4, they
did not consent to having their location-based information tracked, collected
and stored.  Although she does not say so expressly, the implication of Ms.
Ladas’s evidence is that she turned Location Services off.

[18]        
Ms. Ladas filed this action on May 5, 2011.

[19]        
Ms. Ladas has not used or had possession of her iPhone 4 or her iPod Touch
since she delivered them to Mr. Derek Ho of Totally Connected Security
Forensics Limited on May 9, 2011.  Ms. Ladas says that she met further with Mr.
Ho on August 4, 2011 so that he could “image” her desktop computer.  Mr. Ho has
provided an affidavit describing what he did with Ms. Ladas’s iPhone 4 and
computer.

[20]        
Ms. Ladas says that in April 2012, she reviewed a “Google Map,” which is
part of the expert report prepared by Mr. Graf.  Ms. Ladas says that, based on
her review of the Google Map, “I confirm that I was ‘located’, and tracked and
recorded by my iPhone” at a number of addresses.  Ms. Ladas says that her
understanding is that Mr. Graf obtained the information reproduced on the
“Google Map” from her iPhone, not from Apple.

[21]        
Ms. Ladas says that:

I am offended and disappointed to see my precise whereabouts
appear on this “Google Map”, as Apple Inc. has reassured the public that it “is
not tracking the location of your iPhone.  Apple has never done so and has no
plans to ever do so.”

Ms. Ladas attaches a copy of an Apple press release to
this effect as part of Exhibit “B” to her affidavit.

[22]        
Mr. Huang explains the background to this press release.  He says that,
because of an “unintended bug” in iOS software versions 4.0 to 4.3.2,
collection of location information on a user’s iDevice might occur if a user
launched certain Location-Aware apps “and if numerous other conditions
were met” (underlining in original), even if Location Services was
“off.”  He says that Apple did not discover this bug until approximately April
24, 2011, when it was investigating claims in a media article.  Mr. Huang was
personally involved in the investigation and discovery of the bug, and on April
27, 2011, Apple published on its website the document attached as Exhibit “B”
to Ms. Ladas’s affidavit.  Mr. Huang says that on May 4, 2011, Apple made a
free iOS update (version 4.3.3) available that resolved the issue.

[23]        
Mr. Huang’s explanation of the bug might explain why location data would
be found on Ms. Ladas’s iPhone even if she had turned Location Services “off,” although
she also says that she did not download or use any location-based Apps or
services.

[24]        
Ms. Ladas says that, based on her personal experiences (as described in
her affidavit), she believes that she would fairly and adequately represent the
interests of the proposed class.  With respect to the potential class size, Ms.
Ladas says that she has read and heard in the media estimates that the number
of iDevice users with the iOS4 operating system is between two and seven
million.  Ms. Ladas attaches some sample pages from Internet sites, estimating
numbers of users of the iPod Touch and iPhone 4, as Exhibit “C” to her
affidavit.  However, the articles do not say anything about the operating
system used by the devices.  Based on the proposed class description, the class
would be limited to those persons having iDevices using the iOS 4 operating
system.

[25]        
Mr. Huang also addresses potential class size.  He summarizes the
various versions of the iOS 4 operating system and when they became publicly
available.  There are a total of 18 versions (numbered 4.0 to 4.3.5), released
over a period from June 21, 2010 to July 25, 2011.  On October 12, 2011, a new
operating system, iOS 5.0, was released.  As of September 2013, the current
version of iOS was iOS 6.1.4.

[26]        
Mr. Huang says that each version update of iOS 4 was available for the iDevice
user by connecting her iDevice to her own personal computer while the computer
was connected to the Internet, if the user had installed iTunes to that
computer and had authorized it to synchronize with her iDevice.

[27]        
Mr. Huang goes on to say that whether iOS 4 is the operating system used
by any of the iDevices in issue in this action will depend on:  (a) the type
and generation of the iDevice; (b) when the iDevice was purchased, since Apple
and its distributors only sell devices with the then-current version of iOS;
and (c) whether and when the user updated iOS on the iDevice.

[28]        
According to Mr. Huang, a user who purchased an iPhone 4 in B.C. with
iOS 4.0 would only still be operating iOS 4.0 in the summer of 2013 if the user
had refused to or avoided ever updating iOS on her iPhone, despite
notifications through iTunes and on the iOS Device itself of the availability
of each iOS 4.0 update.  Mr. Huang says that, as of September 2013, if the user
of an iPhone 4 purchased in B.C. had updated iOS, she could be using any
version from iOS 4.0.1 to iOS 6.1.4, inclusive, depending on her own
decision-making as to which iOS version updates she chose to install.

[29]        
I note that Mr. Huang’s evidence concerning software updates is
confirmed by Mr. Graf (see p. 10, para. 7 of his report).  In order to avoid
updating the software, a user must “cancel” the request.  That is what Mr. Graf
had to do.

[30]        
Mr. Huang does not say that the operating system currently being used by
an iDevice – and whether it is iOS 4 or some other, later version – cannot be
determined.  Based on the evidence, I conclude that in fact it can be.

3.       Objections to the Plaintiff’s expert
reports

[31]        
Apple raises a number of objections to the admissibility of the
affidavits of Dr. Rossmo, Mr. Graf and Mr. Smith.  Each has prepared a report
(attached as an exhibit to the expert’s affidavit).

[32]        
The main objection is that none of these affidavits is relevant to the
issues on the certification application, but goes to the merits of the claims
made by Ms. Ladas.  I note that Ms. Ladas’s own evidence supports this view of
these affidavits, since she says in her Affidavit No. 2:

10.       Class counsel has collected the necessary evidence
to make a prima facie case against the defendant.  This includes the
expert reports of Francis Graf, Kim Rossmo, Eric Smith and Michael Elterman.  .
. .

[33]        
I will address Dr. Rossmo’s report first.

[34]        
Dr. Rossmo was tendered as an expert in geographic profiling and
investigations.  He has an impressive résumé, and is the author of a number of
books, book chapters and scholarly papers.  In his report, he states that he
was asked to “prepare a report setting out the possible uses, misuses and
ramifications related to and arising from the collection and storage of
locational and other data on Apple smart devices . . . .  This opinion relates
to the issue of damages in this proceeding.”

[35]        
Dr. Rossmo concludes his report with these observations:

 Smart phones provide
great functionality and utility.  However, by the very use of this wide-ranging
functionality, an individual reveals much about their personal preferences,
choices, and behaviours.  This information must be protected and a user’s
privacy maintained.

. . .

 In 1984, the world was introduced to the Apple
Macintosh computer by a now famous Super Bowl commercial which depicted a
female heroine resisting the tyranny of Big Brother.  In George Orwell’s dystopian
novel, Big Brother was the omniscient head of a totalitarian government.  In
2012, we must be careful that Big Business does not take the place of Big
Brother.

[36]        
Dr. Rossmo’s report is inadmissible.

[37]        
Insofar as it addresses “damages,” or the damage that potentially might
result from an unlawful breach of privacy or surveillance of an individual, Dr.
Rossmo’s report is not relevant to the issues the court must address on the
certification application.  At this point, the court is concerned only with the
form of the action, not the merits of the claims:  see Hollick v.
Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 16. 
Dr. Rossmo’s report is neither necessary nor helpful in addressing the
certification issues.

[38]        
I express no opinion on whether Dr. Rossmo’s report would meet the
criterion of necessity, or the other criteria for admissibility, set out in the
leading case of R. v. Mohan, [1994] 2 S.C.R. 9, in relation to
the merits of the plaintiff’s claims.  However, one might well question whether
any opinion evidence on the potential dangers and the harm that can result from
loss of privacy and loss of control of personal information is necessary.  In Douez
v. Facebook, Inc., 2014 BCSC 953, for example, Madam Justice Griffin
discusses (at paras. 97 and following) the public interest in protecting
privacy and the origins of legislation such as the Privacy Act,
R.S.B.C. 1996, c. 373 (the “Privacy Act (B.C.)”).

[39]        
Moreover, although Dr. Rossmo’s report contains the certification
required by Rule 11-2(2) of the Supreme Court Civil Rules, the
report is replete with advocacy and argument.  Dr. Rossmo does not provide a
balanced discussion of issues relevant to whether this action should be
certified as a class proceeding.  Rather, he argues forcefully for a particular
point of view, essentially as an advocate for the protection of privacy.  Advocacy
– even in support of a worthy cause – is not the role of an independent
expert.  The prejudicial effect of Dr. Rossmo’s report far outweighs its
probative value, given the issues I have to decide on the certification
application.

[40]        
I turn next to Mr. Graf’s affidavit and report.

[41]        
Mr. Graf states his occupation as a “digital forensics examiner.” 
According to his CV, he is the founder and the former president and chief
executive officer of Forensic Data Recovery Inc., a former police officer and
(as of the date of his report) was a special constable with the Victoria Police
Department.  His academic credentials include a Master of Arts in psychology
from the University of Victoria, and he has a substantial number of
publications and presentations to his credit.

[42]        
In his report, Mr. Graf says (at pp. 3-4; underlining added):

Instructions Provided:

I have been instructed to provide
my expert opinion on what, if any, location based data is stored on devices
sold in Canada by Apple Inc., running the iOS4x operating system and whether or
not any of that data is transferred to any computer connected to such devices
when the devices are backed up . . . .

Nature of Opinion Sought

I understand that my opinion is
being sought to assist the Court in determining whether or not iOS4x
functions in breach of users’ privacy and security rights.

. . .

Factual Assumptions

I have assumed that the exhibits (“Exhibits”) examined by me
[Mritchie’s iPhone, delivered to him by Megan Ritchie; iphone3gs, delivered to
him by Rahiman Sutter; and Mommy’s iPhone4, a backup file created from Ms.
Ladas’s iPhone] and their associated backup files are a representative
sample of devices sold in Canada by Apple Inc. that run on iOS4x and the
associated backup files are a representative sample of backup files that relate
do these devices and that, therefore, my findings are representative of findings
expected on other Apple Inc. devices sold in Canada that run on the same
iOS4x and their backup files.

[43]        
Mr. Graf’s description of the nature of the opinion sought – in other
words, the issue he was asked to address – makes it clear that his opinion goes
to the merits of the claims in the action.  However, these are not relevant on
the certification application.  Whether “the claims of the class members raise
common issues” is relevant on the certification application.  However,
Mr. Graf has simply made an assumption that the items he examined are “a
representative sample,” so his opinions cannot assist in addressing the issues
relevant to certification.

[44]        
Mr. Graf’s report is inadmissible because it is not relevant to the
issues I have to decide on the certification application.

[45]        
Mr. Smith states his occupation as “Information Security, Networking and
Systems Administration Professional.”  According to his report, his areas of
expertise include information network design, information security and analysis
of electronic data transmissions.

[46]        
With respect to the “Instructions Provided and Nature of Opinion
Sought,” Mr. Smith says (at p. 4 of his report):

I was asked to prepare a report describing the methods by
which the physical location of an iOS4 device could be shared with outside
parties including Apple Corporation as it related to the report prepared by
Francis Graf in connection with the Plaintiff’s claims in this action.

[47]        
Under “Assumptions,” Mr. Smith says (at p. 4; underlining added):

This report assumes an unmodified Apple smart device running
the iOS4x operating system is used in a routine fashion by its owner.

This is the only assumption expressly stated as such in
Mr. Smith’s report.

[48]        
At p. 28 of his report, Mr. Smith says (underlining added):  “In
this phase of the investigation, the communications between the iOS4 device and
remote servers was studied while simulating routine user interaction and use
of the iOS4 device.”

[49]        
The inescapable conclusion is that Mr. Smith has made assumptions about
what the “routine fashion” and “routine use” are, but he has not disclosed his
assumptions in the report.  At best, and like Mr. Graf did, Mr. Smith has
simply assumed things are “routine” (without telling me what he means by that)
or representative.  As a result, his opinions cannot assist me in dealing with
the issues relevant to certification.  And like Mr. Graf, Mr. Smith has
(because he was asked to) provided an opinion going to the merits of the
claims.  Mr. Smith’s “Addendum” (attached as an exhibit to his Affidavit No. 2)
suffers from the same flaws.

[50]        
Accordingly, Mr. Smith’s opinions and reports are inadmissible because
they are not relevant to the issues I have to decide.

[51]        
Apple has objected to Dr. Rossmo’s, Mr. Graf’s and Mr. Smith’s reports
on other grounds, in addition to relevance.  For example, Apple says that none
of them complies with Rule 11-6.  With respect to Mr. Smith’s Addendum, Apple
says that it is not proper reply evidence, is argument and advocacy disguised
as opinion and states many conclusions without any factual foundation. 
However, because I have concluded that the evidence of these experts is
inadmissible because it is irrelevant, I do not find it necessary to address
these other objections.  I express no opinion on whether any of these reports,
in their current form, would be admissible on a hearing addressing the merits
of the plaintiff’s claims.

4.       The Certification Requirements – Overview

[52]        
The CPA s. 4 provides:

Class certification

4  (1) The court must certify a
proceeding as a class proceeding on an application under section 2 or 3 if all
of the following requirements are met:

(a) the pleadings disclose a cause of action;

(b) there is an identifiable class of 2 or more persons;

(c) the claims of the class members raise common issues,
whether or not those common issues predominate over issues affecting only
individual members;

(d) a class proceeding would be the preferable procedure for
the fair and efficient resolution of the common issues;

(e) there is a representative plaintiff who

(i)  would fairly and adequately represent the interests of
the class,

(ii)  has produced a plan for the proceeding that sets out a
workable method of advancing the proceeding on behalf of the class and of
notifying class members of the proceeding, and

(iii)  does not have, on the common issues, an interest that
is in conflict with the interests of other class members.

(2) In determining whether a
class proceeding would be the preferable procedure for the fair and efficient
resolution of the common issues, the court must consider all relevant matters
including the following:

(a) whether questions of fact or law common to the members
of the class predominate over any questions affecting only individual members;

(b) whether a significant number of the members of the class
have a valid interest in individually controlling the prosecution of separate
actions;

(c) whether the class proceeding would involve claims that
are or have been the subject of any other proceedings;

(d) whether other means of resolving the claims are less
practical or less efficient;

(e) whether the administration of
the class proceeding would create greater difficulties than those likely to be
experienced if relief were sought by other means.

[53]        
After almost two decades of experience with the CPA, and
as Madam Justice Kirkpatrick observed in Stanway v. Wyeth Canada Inc.,
2012 BCCA 260, at para. 3, certain issues have been settled and guiding
principles have emerged concerning the approach to and disposition of a
certification application.

[54]        
The provisions of the CPA should be construed generously
in order to achieve its objects:  judicial economy (by combining similar
actions and avoiding unnecessary duplication in fact-finding and legal
analysis); access to justice (by spreading litigation costs over a large number
of plaintiffs, thereby making economical the prosecution of otherwise
unaffordable claims); and behaviour modification (by deterring wrongdoers and
potential wrongdoers through disabusing them of the assumption that minor but
widespread harm will not result in litigation).  See Western Canadian
Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at
paras. 26-29, and Hollick, at para. 15.

[55]        
Courts are not to take an overly restrictive approach to the
legislation, but are to interpret the CPA in a way that gives
full effect to the benefits foreseen by the drafters:  see Hollick,
at para. 15.

[56]        
As I noted above, the certification hearing does not involve an
assessment of the merits of the claim.  Rather, it focuses on the form
of the action in order to determine whether the action can appropriately go
forward as a class proceeding.  See Hollick at para. 16, and Pro-Sys
Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, at para. 102.

[57]        
The burden is on the plaintiff to show “some basis in fact” for each of
the certification requirements, other than the requirement that the pleadings
disclose a cause of action:  see Hollick, at para. 25.  In
conformity with the liberal and purposive approach to certification, the
evidentiary burden is not an onerous one:  see Hollick, at paras.
21, 24-25.

[58]        
Nevertheless, the evidence must meet the usual criteria for the
admissibility of evidence, as a relaxation of the usual rules would not seem
consonant with the policy implicit in the CPA that some judicial
scrutiny of certification applications is desirable:  see Ernewein v.
General Motors of Canada, 2005 BCCA 540, at para. 31.  In Pro-Sys,
Mr. Justice Rothstein noted (at para. 103) that “it is worth reaffirming
the importance of certification as a meaningful screening device,” and stated
(at para. 104):

There must be sufficient facts to satisfy the applications
judge that the conditions for certification have been met to a degree that
should allow the matter to proceed on a class basis without foundering at the
merits stage by reason of the requirements of s. 4(1) of the CPA not
having been met.

5.       Do the plaintiff’s pleadings disclose a
cause of action?

[59]        
The first requirement is that the pleadings disclose a cause of action. 
This requirement is assessed on the same standard of proof that applies to a
motion to dismiss, as set out in Hunt v. Carey Canada Inc.,
[1990] 2 S.C.R. 959, at p. 980.  A plaintiff satisfies this requirement unless,
assuming all facts pleaded to be true (unless they are patently unreasonable or
incapable of proof), it is plain and obvious that the plaintiff’s claim cannot
succeed.  See Pro-Sys, at para. 63 and Young v. Borzoni,
2007 BCCA 16, at paras. 26 and following.

[60]        
The burden is on the plaintiff to show that the pleadings disclose a
cause of action.  If, on the pleadings, there is no legal claim, then there is
no utility in a class (or any) proceeding:  see MacFarlane v. United
Parcel Service Canada Ltd., 2010 BCCA 171, at para. 21.

[61]        
Mr. Galambos submits that, for purposes of s. 4(1)(a), pleadings must be
read generously with a view to accommodating any inadequacies in the form of
the allegations owing to drafting deficiencies.  He submits further that, where
an inadequacy in a pleading can be rectified by an amendment, the court will
not dismiss the certification application, “but will generously read the
pleadings to accommodate the inadequacy,” and that “where an essential element
of a claim is not pleaded, the court will infer the necessary elements of the
claim for purposes of the certification application.”  Mr. Galambos cites Collette
v. Great Pacific Management Co., 2001 BCSC 237, at para. 36, in support
of these latter propositions.

[62]        
I do not agree with Mr. Galambos that Collette provides
support for such a low bar.  What Mr. Justice Macaulay in fact says at para. 36
of Collette is this:

[36]      The principles to be
applied in determining whether pleadings support a cause of action were
reviewed in Endean at 165.  I summarize them here:

(1)        All allegations of fact, unless
patently ridiculous or incapable of proof, must be accepted as proved;

(2)        It must be plain and obvious
beyond doubt that the plaintiffs could not succeed;

(3)        The novelty of the cause of
action will not militate against the plaintiffs; and

(4)        The
statement of claim must be read as generously as possible, with a view to
accommodating any drafting deficiencies.

[63]        
I do not see this summary as providing support for the proposition that
a failure to plead a material fact, necessary to state a complete cause of
action, is something that can be overlooked, or for the proposition that, in
the absence of a pleading of a material fact, the court will “infer” what it
not there.  The causes of action advanced by the plaintiff here – breach of
privacy and claims under the BPA – are not novel causes of
action.  There is considerable guidance in the case law relating to what must
be pleaded and proved.  The consequence of failing to plead a material fact,
necessary to state a complete cause of action, is that no reasonable claim has
been pleaded:  see Young v. Borzoni, at para. 20.

[64]        
There are circumstances where the court may be prepared to consider a
proposed amended pleading.  However, apart from some clarifications made during
oral submissions, the plaintiff here has not put forward any proposed amended
notice of civil claim in response to Apple’s attack on the sufficiency of her
pleading.  Rather, that plaintiff’s position is that the amended notice of
civil claim filed June 14, 2011 (the “NCC”) satisfies the requirements under s.
4(1)(a) of the CPA.

[65]        
Apple says that the NCC is deficient in a number of respects.  Ms. Cocks
submits that it fails to state any reasonable claim in tort for breach of
privacy or for negligent breach of privacy.  She submits that it fails to state
any reasonable claim under either the Privacy Act, R.S.C. 1985,
c. P-21 (the “Privacy Act (Canada)”) or the many provincial
statutes pleaded in the “Legal Basis,” and also fails to state any reasonable
claim under the Sale of Goods Act, R.S.B.C. 1996, c. 410. 
Ms. Cocks submits that the NCC fails to state any reasonable claim under
the BPA.  Finally, she submits that it fails to state any
reasonable claim for aggravated damages.

(a)      The breach of privacy allegations

[66]        
The plaintiff pleads the following in “Part 1:  Statement of Facts” of
the NCC (underlining, indicating amendments, omitted):

9.         Apple Inc. owes the
plaintiff a statutory duty and a duty of care not to breach the privacy and
security of the plaintiff.

10.       Apple Inc.
intentionally or, in the alternative, in breach of its duty of care to the
plaintiff, by designing and producing iOS4 to record the location of iPhone 4,
iPad and some iPod as well as iPhone 3G and iPhone 3GS devices by utilizing a
hidden file to store locational data for long periods of time, including date,
time and geographic place, in unencrypted form, without the knowledge or, in
the alternative, informed consent of the plaintiff, accessible to Apple Inc.,
breached its statutory duty and duty of care owed to the plaintiff.

10(a)    Without limiting the
generality of the foregoing, the Plaintiff says that the conduct of the
Defendant in doing so constitutes a willful violation, without a claim of
right, of the privacy of the Plaintiff and eavesdropping and surveillance of
the Plaintiff contrary to s. 1 of the Privacy Act, R.S.B.C. 1996. c.
373. and amendments thereto.

. . .

11.       Apple Inc.
intentionally or, in the alternative, in breach of it [sic] duty of care to the
plaintiff, by designing and producing iOS4 to copy the said unencrypted
locational data to the plaintiffs’ [sic] home computer and any other computers
to which the plaintiff’s devices that utilize iOS4 are synchronized with, thus
granting Apple Inc. greater access to the plaintiff’s personal data or
information, also without the knowledge or, in the alternative, informed
consent of the plaintiff, breached its statutory duty and duty of care owed to
the plaintiff.

12.       The plaintiff did not
know of or, in the alternative, did not provide her informed consent to the
covert tracking of her iPod Touch and iPhone by the defendant, nor was she
afforded the option to "opt out" of the tracking features of iOS4.

13.       The plaintiff has an
absolute right to privacy and security of person by the common and statue laws
of British Columbia, and the Canadian Charter of Rights and Freedoms,
which rights have been egregiously violated by the defendant by its ongoing
covert recording and transcription to other computers of the plaintiff’s
unencrypted locational data, by which recording and transcription the
plaintiff’s data and privacy and security of person have been intentionally
violated and compromised by Apple Inc. or, in the alternative, in breach of Apple
Inc.’s duty of care to the plaintiff, without her knowledge or, in the
alternative, informed consent.

14.       Without limiting the generality of the foregoing,
the intentional or, in the alternative, negligent design and production of iOS4
to store the plaintiff’s locational data on her iPad and iPhone, and copy all
such data to her home computer and to any other computer to which the
plaintiff’s iPod Touch and iPhone 4 were synchronized with, all in unencrypted
form, is a particularly offensive and dangerous violation of the plaintiffs
privacy and security rights as anyone accessing the said locational data would,
by virtue of the unencrypted nature of it, have unfettered access to the
plaintiffs personal information sufficient to cause her grievous injury and
damages including physical harm all of which have caused the plaintiff loss,
injury and damages set out herein.

(i)       The claim under the Privacy Act (B.C.)

[67]        
The claim under the Privacy Act (B.C.) is at the heart of
this action.  In my opinion, there are some problems with how the claim has
been pleaded, given the function of pleadings:  see Stoneman v. Denman
Island Local Trust Committee, 2010 BCSC 636, at paras. 16-17.  However,
Apple did not argue that no reasonable claim had been pleaded under the Privacy
Act (B.C.).  I will therefore make only a few comments concerning this
claim.

[68]        
The plaintiff’s claim relies on s. 1 of the Privacy Act (B.C.),
which provides:

Violation
of privacy actionable

1          (1)        It is a tort,
actionable without proof of damage, for a person, wilfully and without a claim
of right, to violate the privacy of another.

 (2)        The nature and
degree of privacy to which a person is entitled in a situation or in relation
to a matter is that which is reasonable in the circumstances, giving due regard
to the lawful interests of others.

 (3)        In determining
whether the act or conduct of a person is a violation of another’s privacy,
regard must be given to the nature, incidence and occasion of the act or
conduct and to any domestic or other relationship between the parties.

 (4)        Without
limiting subsections (1) to (3), privacy may be violated by eavesdropping or
surveillance, whether or not accomplished by trespass.

[69]        
Section 2 sets out a number of exceptions:

Exceptions

2          (1)        In this
section:

"court" includes a person authorized by law
to administer an oath for taking evidence when acting for the purpose for which
the person is authorized to take evidence;

"crime" includes an offence against a law
of British Columbia.

(2)        An act or conduct is not a violation of privacy
if any of the following applies:

(a) it is consented to by some person entitled to consent;

(b) the act or conduct was incidental to the exercise of a
lawful right of defence of person or property;

(c) the act or conduct was authorized or required under a
law in force in British Columbia, by a court or by any process of a court;

(d) the act or conduct was that of

(i)  a peace officer acting in the course of his or her duty
to prevent, discover or investigate crime or to discover or apprehend the
perpetrators of a crime, or

(ii)  a public officer engaged in an investigation in the
course of his or her duty under a law in force in British Columbia,

and was neither disproportionate to the gravity of the crime
or matter subject to investigation nor committed in the course of a trespass.

(3)        A publication of a matter is not a violation of
privacy if

(a) the matter published was of public interest or was fair
comment on a matter of public interest, or

(b) the publication was privileged in accordance with the
rules of law relating to defamation.

(4)        Subsection (3) does not
extend to any other act or conduct by which the matter published was obtained
if that other act or conduct was itself a violation of privacy.

[70]        
Thus, it is necessary for the plaintiff to plead (as she has) that Apple
acted “wilfully” or intentionally, and that she did not consent.  The plaintiff
has pleaded (at NCC paras. 10 and 10(a)) that, by designing and producing iOS4
to record the location of the iDevice by using a hidden file to store the
locational data in unencrypted form and accessible to Apple, Apple breached her
right to privacy under the Privacy Act (B.C.) and its conduct
also constitutes eavesdropping and surveillance under the Act.

[71]        
The plaintiff has pleaded further (NCC para. 11) that, by designing and
producing iOS4 to copy unencrypted locational data to other computers, Apple
has been granted “greater access” to the plaintiff’s personal information and
breached the plaintiff’s right to privacy under the Privacy Act (B.C.).

[72]        
I note that the plaintiff has not pleaded that any data or
information is in fact transmitted to Apple, and she has not pleaded
that Apple (or anyone else) has in fact accessed any data.  She goes no further
than to say the data and information is “accessible,” and that the copying
alleged in para. 11 grants Apple “greater access” to her personal information.

[73]        
The NCC is not particularly artful.  However, a pleading does not need
to be artful (provided certain minimum requirements are met) to be sufficient. 
The plaintiff has stated a reasonable claim under the Privacy Act (B.C.).

[74]        
Only persons resident in B.C. will be entitled to pursue a claim under
the Privacy Act (B.C.):  see Stanway v. Wyeth Canada Inc.,
2011 BCSC 1057, at para. 36.

(ii)      The tort claim for breach of privacy

[75]        
I turn next to the tort claim for breach of privacy.  The material facts
alleged are found in paras. 9, 10, 10A, 11, 12, 13 and 14 of Part 1 of the
NCC.  There are additional allegations relating to this claim in para. 1 of
Part 2 and para. 1 of Part 3 of the NCC.  The claim is pleaded as both a breach
of statute, and in negligence:  see NCC para. 9.

[76]        
There can be no doubt that there is no common law tort of invasion or
breach of privacy in British Columbia:  see Ari v. Insurance Corporation
of British Columbia, 2013 BCSC 1308, at paras. 63-65.  Any alleged
breach of privacy is only actionable under the Privacy Act (B.C.). 
Thus, the plaintiff (and any B.C. residents who might be members of the
proposed class) can only advance a claim under the Privacy Act (B.C.).

[77]        
It follows that, to the extent that allegations in the NCC are based on
a pleading of a duty of care being owed by Apple to the plaintiff and a breach
of that duty, they fail to state any reasonable claim by the plaintiff (or any
other B.C. resident).

[78]        
However, Mr. Galambos submits that these allegations – although made
specifically about the plaintiff – are also made to support non-statutory,
common law claims by non-B.C. residents.  This is not obvious from the NCC. 
For example, para. 9 of the NCC mentions the plaintiff only.  But, giving
the pleading a generous reading, I will accept that what Mr. Galambos describes
is what is intended.  It must be remembered that a proposed class proceeding is
an “action with ambition” (see MacKinnon v. Instaloans Financial Solution
Centres (Kelowna) Ltd., 2004 BCCA 472, at para. 33), and the
plaintiff’s action has ambitions to include not only persons in B.C. but
outside B.C. as well:  see the NCC para. 4.

[79]        
The question then is whether the facts alleged in the NCC state a
complete cause of action against Apple in negligence for breach of privacy. 
Mr. Galambos did not cite or refer to any case where a court had concluded such
a claim might exist.

[80]        
In order for an action in negligence to succeed, a plaintiff must plead
and prove three things:  (i) that the defendant owed the plaintiff a duty of
care; (ii) that the defendant breached that duty of care; and (iii) that
damages resulted from that breach.  See Young v. Borzoni, at
para. 46 (citing Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003]
3 S.C.R. 263, at para. 44).

[81]        
Ms. Cocks submits that no reasonable claim in negligence has been pleaded. 
She says that the plaintiff has failed to plead material facts to support the
foreseeability and proximity elements of a duty of care analysis (as described
in Cooper v. Hobart, 2001 SCC 79, for example).

[82]        
It is insufficient merely to plead the existence of a duty of care. 
That is a conclusion of law that must be supported by the pleading of material
facts.  See Young v. Borzoni, at para. 47.  Here, no such facts
have been pleaded.  It follows that the plaintiff has failed to state a
reasonable claim in negligence.

[83]        
On the other hand, there is authority to support the existence of a
non-statutory cause of action for breach of privacy based on intentional
conduct on the part of a defendant.  In Jones v. Tsige, 2012 ONCA
32 (cited by Russell J. in Ari v. ICBC), Mr. Justice Sharpe (for
the court) described the elements of such a claim as follows (at paras. 70-71; underlining
added):

[70]      I would essentially
adopt as the elements of the action for intrusion upon seclusion the Restatement
(Second) of Torts (2010) formulation which, for the sake of convenience, I
repeat here:

One who intentionally intrudes, physically or
otherwise, upon the seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the invasion
would be highly offensive to a reasonable person.

[71]      The key features of this cause of action are,
first, that the defendant’s conduct must be intentional, within which I
would include reckless; second, that the defendant must have invaded, without
lawful justification, the plaintiff’s private affairs or concerns; and third,
that a reasonable person would regard the invasion as highly offensive causing
distress, humiliation or anguish.  . . .

[84]        
Although (given the guidance provided by Mr. Justice Sharpe), the
pleading here is not as clear as it could be, I conclude that the allegation of
intentional conduct on the part of Apple is sufficient to state a
reasonable claim.  However, the attempt to plead a cause of action in
negligence, based on the bare allegation of a duty of care owed by Apple, fails
to state a reasonable claim.

[85]        
The plaintiff pleads her case as engaging both her privacy and her
security rights.  See, for example, the allegations in paras. 9 and 13 of Part
1 of the NCC, quoted above.  In Part 2 (the “Relief Sought”), the plaintiff (on
her own behalf and on behalf of the class) claims damages for “violation of
privacy and security rights.”

[86]        
In addition, in Part 3 – the “Legal Basis” – the plaintiff alleges (underlining
added):

1.         The plaintiff claims that the defendant is
responsible for ensuring the privacy and security rights of the
plaintiff and all members of the class and, as such, owes a duty to the
plaintiff and to each member of the class in each of tort, and/or statute and
the plaintiff claims that the defendant intentionally or . . . negligently
breached those duties by failing adequately and properly adhere to the common
law and statute laws of British Columbia and Canada . . .  and respect her confidentiality,
privacy and security.

[87]        
The reference (in para. 13 of Part 1) to the Canadian Charter of
Rights and Freedoms in support of the security rights claim fails to
state any reasonable claim.  The Charter does not apply to common
law disputes between private individuals:  see Jones v. Tsige, at
para. 45.  Mr. Galambos suggested that the allegations regarding the
plaintiff’s security interests could survive as a plea of aggravating factors
under the Privacy Act (B.C.), but he cited no authority for that
proposition.

[88]        
The allegations concerning the plaintiff’s security rights (and to the
extent those are alleged to extend to the proposed class) fail to state a
reasonable claim.

[89]        
In addition, the allegation in para. 13 of the Statement of Facts that
the plaintiff has “an absolute right to privacy” discloses no reasonable
claim.

[90]        
B.C. (and Canadian) law does not recognize an “absolute right” to
privacy.  This is plain from a reading of the Privacy Act (B.C.),
in particular, s. 1(2) (“The nature and degree of privacy to which a person is
entitled in a situation or in relation to a matter is that which is reasonable
in the circumstances, giving due regard to the lawful interests of others.”)
and s. 1(3) (“In determining whether the act or conduct of a person is a
violation of another’s privacy, regard must be given to the nature, incidence
and occasion of the act or conduct and to any domestic or other relationship
between the parties.”).

[91]        
I acknowledge that para. 13 is found in Part 1 of the NCC – the
“Statement of Facts – and that, when assessing whether a reasonable claim has
been pleaded, the facts alleged, generally speaking, must be taken to be true. 
However, that is not an absolute rule:  see Young v. Borzoni and Collette,
above.  Moreover, the allegation is a legal conclusion concerning the
plaintiff’s rights; it is not an allegation of fact.

(iii)     Does the Privacy Act (Canada) or legislation
from other Provinces provide a legal basis for any cause of action?

[92]        
In Part 3, the “Legal Basis” section of the NCC, the plaintiff pleads a lengthy
list of statues as providing the legal basis for the relief claimed in Part 2,
based on the facts alleged in Part 1.

[93]        
However, if legislation pleaded as the “legal basis” for relief claimed
based on the facts alleged in a notice of civil claim does not provide any
basis in law for the relief, simply pleading the legislation as the “legal
basis” does nothing to advance a plaintiff’s claim.

[94]        
In Part 3, the plaintiff “pleads and relies on” the following
legislation:  the Privacy Act (Canada) (Part 3 para. 9); the Personal
Information Protection Act, S.A. 2003. c. P-6.5 (Part 3 para. 13); the Freedom
of Information and Protection of Privacy Act, S.N.S. 1993, c. 5 (Part 3
para. 14); the Freedom of Information and Protection of Privacy Act,
R.S.O. 1990, c. F.31 (Part 3 para. 15); the Protection of Personal
Information Act, S.N.B. 1998, c. P-19.1 (Part 3 para. 16); the Freedom
of Information and Protection of Privacy Act, R.S.P.E.I. c. F-15.01
(Part 3 para. 17); the Access to Information and Protection of Privacy
Act, S.N.L. 2002, c. A-1.1 (Part 3 para. 19); the Access to Information
and Protection of Privacy Act, S.N.W.T. 1994, c. 20 and s. 29 of the Nunavut
Act, S.C. 1993 c. 28 (Part 3 paras. 20 and 21); and the Access to
Information and Protection of Privacy Act, R.S.Y. 2002, c. 1 (Part 3
para. 22).  No particular section or sections of any of these statutes is
identified in the NCC.  Neither the plaintiff’s written submissions nor the
oral submissions at the hearing of the certification application explained how any
of this legislation provided a legal basis for the relief claimed, based on the
facts alleged.

[95]        
In my opinion, it is plain and obvious that the Privacy Act
(Canada) does not provide a legal basis for the plaintiff (or proposed
class members) to obtain the relief sought based on the facts pleaded.  The
purpose of the Privacy Act (Canada) is stated in s. 2 to be “to
extend the present laws of Canada that protect the privacy of individuals with
respect to personal information about themselves held by a government
institution and that provide individuals with a right of access to that
information” (underlining added).  There are no facts pleaded that would
make the Privacy Act (Canada) applicable to Apple.

[96]        
The same is true with respect to the provincial statutes listed above.

[97]        
For example, the purposes of the Ontario Freedom of Information
and Protection of Privacy Act are stated in s. 1 as follows:

The purposes of this Act are,

(a) to provide a right of access
to information under the control of institutions in accordance with the
principles that,

(i) information should be available to the public,

(ii) necessary exemptions from the right of access should be
limited and specific, and

(iii) decisions on the disclosure of government information
should be reviewed independently of government; and

(b) to protect the privacy of individuals with respect to
personal information about themselves held by institutions and to provide
individuals with a right of access to that information.

[98]        
“Institution” is defined in s. 2(1) to mean:

(0.a) the Assembly,

(a) a ministry of the Government
of Ontario,

(a.1) a service provider
organization within the meaning of section 17.1 of the Ministry of
Government Services Act,

(a.2) a hospital, and

(b) any agency, board, commission, corporation or other body
designated as an institution in the regulations; (“institution”).

[99]        
Not surprisingly, there are no facts pleaded that would bring Apple
within the definition of “institution.”  Based on the facts pleaded, the
Ontario Freedom of Information and Protection of Privacy Act does
not provide a legal basis for the relief claimed based on the facts alleged.

[100]     Accordingly,
none of these paragraphs states a reasonable claim.

[101]     The Protection
of Personal Information Act, S.N.B. 1998, c. P-19.1, pleaded in para.
16 of Part 3, was repealed in September 2010.  In any event, its provisions
were similar to the provisions of the other provincial statutes listed above. 
Accordingly, para. 16 of Part 3 fails to state a reasonable claim.

[102]     On the
other hand, as Sharpe J.A. discusses in Jones v. Tsige (at para.
52), some provinces (such as B.C.) have enacted legislation to protect privacy
rights.  Although Mr. Galambos did not specifically identify them, the statutes
pleaded in the NCC that (based on Mr. Justice Sharpe’s discussion) appear to be
similar to the Privacy Act (B.C.) are:  the Privacy Act,
R.S.S. 1978. c. P-24 (Part 3 para. 10); the Privacy Act,
R.S.N.L.1990. c. P-22 (Part 3 para. 11); and the Privacy Act,
C.C.S.M.1987, c. P-125 (Part 3 para. 12).  These statutes can provide a legal
basis for a reasonable claim (by residents of those provinces) for breach of
privacy, in the same way that the Privacy Act (B.C.) does.

[103]     Mr.
Justice Sharpe does not include An Act Respecting the Protection of
Personal Information in the Private Sector, R.S.Q. c. P-39.1, referred
to at para. 18 of Part 3 of the NCC, among the list of statutes.  In the
absence of some assistance on the point from Mr. Galambos, I conclude that this
statute falls in the same category as the Privacy Act (Canada),
and does not provide any legal basis for any of the relief claimed in this
action based on the facts alleged.  Para. 18 of Part 3 fails therefore to state
a reasonable claim.

(iv)     Summary re breach of privacy allegations

[104]     In
summary, therefore, with respect to the breach of privacy allegations in the
NCC:

(a)      the
plaintiff has pleaded a reasonable claim under the Privacy Act (B.C.);

(b)      the
plaintiff has failed to plead any reasonable common law claim for breach of
privacy on behalf of herself or any other B.C. resident;

(c)      the
plaintiff has failed to plead any reasonable claim in negligence for breach of
privacy;

(d)      the
plaintiff has pleaded a reasonable claim based on the statutes pleaded in the
following paragraphs of Part 3 of the NCC:  paras. 10, 11 and 12;

(e)      the
plaintiff has pleaded a reasonable, non-statutory, claim (on behalf of non-B.C.
residents of provinces other than Saskatchewan, Manitoba and Newfoundland and
Labrador) for intentional breach of privacy;

(f)       the
plaintiff has failed to plead any reasonable claim for breach of security
rights and has failed to plead any reasonable claim based on the allegation of
an absolute right to privacy; and

(g)      the
plaintiff has failed to plead any reasonable claim based on the statutes
pleaded in the following paragraphs of Part 3 of the NCC:  paras. 9, 13, 14,
15, 16, 17, 18, 19, 20, 21 and 22.

(b)      The Sale of Goods Act

[105]     In para. 4
of the Legal Basis, the plaintiff “pleads and relies on the provisions of the Sale
of Goods Act, R.S.B.C. 1996, c. 410.”  No specific provisions are
identified.

[106]     It is not
alleged as a fact that the plaintiff (or anyone else) purchased anything from
Apple.  No relief is claimed on the basis of any contract for the purchase and
sale of goods, and no such contract is alleged.  The pleading of the Sale
of Goods Act in the Legal Basis section is, therefore, not connected
with any relief claimed on the basis of the material facts alleged.  It is not
an element of any reasonable claim that has been pleaded.

(c)      The claim under the BPA

[107]     The
allegations of fact relevant to this claim are set out in paras. 10 and 10(b)
of the NCC:

10.       Apple Inc.
intentionally or, in the alternative, in breach of its duty of care to the
plaintiff, by designing and producing iOS4 to record the location of iPhone 4,
iPad and some iPod as well as iPhone 3G and iPhone 3GS devices by utilizing a
hidden file to store locational data for long periods of time, including date,
time and geographic place, in unencrypted form, without the knowledge or, in
the alternative, informed consent of the plaintiff, accessible to Apple Inc.,
breached its statutory duty and duty of care owed to the plaintiff.

. . .

10(b)    Without limiting the generality of the foregoing,
the Plaintiff says that the conduct of the Defendant in doing so constitutes a
deceptive act or practice that has the capability, tendency or effect of
deceiving or misleading a consumer under the Business Practices and Consumer
Protection Act, S.B.C. 2004. c. 2.

[108]     The allegations
in para. 14 might also be material facts alleged – at least in part – to
support a claim under the BPA, although this is not very clear. 
I repeat para. 14 (in relevant part) here for convenience:

14.       Without limiting the generality of the foregoing,
the intentional or, in the alternative, negligent design and production of iOS4
to store the plaintiff’s locational data on her iPad and iPhone, and copy all
such data to her home computer and to any other computer to which the
plaintiff’s iPod Touch and iPhone 4 were synchronized with . . . is a
particularly offensive and dangerous violation of the plaintiff’s privacy and
security rights as anyone accessing the said locational data would . . . have
unfettered access to the plaintiff’s personal information sufficient to cause
her grievous injury and damages including physical harm all of which have
caused the plaintiff loss, injury and damages set out herein.

[109]     In Part 3
(para. 8), the plaintiff simply “pleads and relies on” the BPA,
without identifying any sections or provisions in particular.

[110]     If I give
the NCC a generous reading, the plaintiff is probably relying on sections 4 and
5 of the BPA, concerning “Deceptive Acts or Practices,” which
provide in part:

Deceptive
acts or practices

4          (1)        In this
Division:

"deceptive act or practice" means, in
relation to a consumer transaction,

(a) an oral, written, visual, descriptive or other
representation by a supplier, or

(b) any conduct by a supplier

that has the capability, tendency or effect of deceiving or
misleading a consumer or guarantor;

"representation" includes any term or form
of a contract, notice or other document used or relied on by a supplier in
connection with a consumer transaction.

(2)        A deceptive act or practice by a supplier may
occur before, during or after the consumer transaction.

. . .

Prohibition
and burden of proof

5          (1)        A supplier must not
commit or engage in a deceptive act or practice in respect of a consumer transaction.

(2)        If it is alleged that a
supplier committed or engaged in a deceptive act or practice, the burden of
proof that the deceptive act or practice was not committed or engaged in is on
the supplier.

[111]     However,
there is no allegation anywhere in the NCC that Apple is a “supplier,” or that
anyone’s acquisition of an iDevice was a “consumer transaction.”  These are
defined terms in s. 1 of the BPA.  One of the definitions of
“consumer transaction” is “a supply of goods or services . . . by a supplier to
a consumer for purposes that are primarily personal, family or household.”  The
NCC is completely silent on whether the plaintiff’s (or any proposed class
member’s) acquisition of iDevices can be described in this way.  Based on Ms.
Ladas’s evidence, for example, she acquired her iPhone 4 for office and
business use.

[112]     “Consumer”
is also a defined term and means “an individual, whether in British Columbia or
not, who participates in a consumer transaction . . . .”  This definition has
implications for the class description (which uses the word “persons,” rather
than “individuals”).

[113]     Whether
Apple is a “supplier” and whether any transaction is a “consumer transaction”
are facts that would need to be pleaded (and proved) as part of a claim under
the BPA.  Here, they are simply not pleaded at all.

[114]     There is
no allegation that Apple made any representation (including any representation
by omission), so the plaintiff must be relying on conduct, as set out in
s. 4(1)(b) of the BPA, to ground her claim.  Indeed, that is what
she has alleged in para. 10(b) of the NCC.  The conduct in issue (“the conduct
of the Defendant in doing so”) must be what is alleged in para. 10 of the NCC. 
There are no other facts pleaded.

[115]     The relief
potentially available in court proceedings under the BPA is set
out in sections 171 and 172, which provide in part:

Damages
recoverable

171      (1)        Subject to subsection
(2), if a person, other than a person referred to in paragraphs (a) to (e), has
suffered damage or loss due to a contravention of this Act or the regulations,
the person who suffered damage or loss may bring an action against a

(a) supplier,

. . .

who engaged in or acquiesced in the contravention that
caused the damage or loss.

. . .

Court
actions respecting consumer transactions

172      (1)        The director or a
person other than a supplier, whether or not the person bringing the action has
a special interest or any interest under this Act or is affected by a consumer
transaction that gives rise to the action, may bring an action in Supreme Court
for one or both of the following:

(a) a declaration that an act or practice engaged in or
about to be engaged in by a supplier in respect of a consumer transaction
contravenes this Act or the regulations;

(b) an interim or permanent injunction restraining a
supplier from contravening this Act or the regulations.

. . .

[116]     However,
it is not clear whether the plaintiff is seeking any remedy under the BPA,
because the plaintiff simply pleads in Part 2:

1.         As a result of the
defendants’ intentional or, in the alternative, negligent violation of the
privacy and security rights of the plaintiff, in breach of statute and common
law, the plaintiff and all members of the class have suffered loss, damage and
expense.  In particular, the plaintiff, who has suffered sleepless nights,
fear, anxiety, discomfort and emotional distress since discovering, on or about
April 22, 2011, that her movements are being tracked, time-stamped and recorded
and transmitted to other computers in unencrypted form, all without her
knowledge or, in the alternative, informed consent, on her own behalf and on
behalf of the class, claims:

. . .

(b)        Damages for violation of
privacy and security rights;

. . .

(f)         Special damages;

(g)        An
interim and permanent injunction restraining and enjoining the defendant from
utilizing or sharing any data on her physical movements collected by iOS4 or
selling any devices in British Columbia or elsewhere in Canada which utilize
the software operating system known as iOS4;

[117]     In the
Legal Basis of the NCC, and in addition to the BPA, the plaintiff
“pleads and relies” on the Law and Equity Act, R.S.B.C. 1996, c.
253, under which the court has the power to order an injunction.  As a result,
it cannot be said that the BPA is the only legal basis pleaded in
support of this particular relief.

[118]     In
addition to failing to plead facts relating to a transaction being a “consumer
transaction” and Apple being a “supplier” under the BPA, the
plaintiff has a further problem, in my opinion.

[119]     Apart from
pleading the conclusory statement in para. 14 (“all of which have caused the
plaintiff loss, injury and damages as set out herein”), the plaintiff has not
pleaded that Apple’s conduct – conduct which she alleges (again, in a conclusory
way) is a deceptive act or practice – caused her to do anything.  A deceptive
act or practice is one that “tends to lead that person astray into making an
error of judgment”:  see Rushak v. Henneken, 1991 CanLII 178, 59
B.C.L.R. (2d) 250 (C.A.).  However, the plaintiff does not plead that she (or
anyone else) was or might have been led astray into making an error in judgment
– or indeed that anything at all happened “in relation to a consumer
transaction” – as a result of any conduct on the part of Apple.  She merely
repeats (in para. 10(b)) the words from the definition of “deceptive act or
practice.”

[120]     There is
also no plea of any causal connection between a contravention of the BPA
by Apple and loss or damage suffered to be suffered by the plaintiff:  see Wakelam
v. Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc., 2014 BCCA 36,
at para. 69.

[121]     I conclude,
therefore, that the plaintiff has failed to plead a reasonable claim under the BPA.

(d)      The claim for aggravated damages

[122]     In Part 2
of the NCC, the plaintiff claims aggravated damages.  In addition, whether the
plaintiff and the proposed class members are entitled to aggravated damages is
an element of proposed Common Issue (c).  Apple says that the plaintiff has
failed to plead any material facts that could support aggravated damages as a
remedy, and therefore has failed to plead any reasonable claim.

[123]     In one of
the leading cases on aggravated and punitive damages, Fidler v. Sun Life
Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3, the court
reminds us (at paras. 51-53) that the term “aggravated damages” is often
misused, leading to confusion:

51        It may be useful to
clarify the use of the term “aggravated damages” in the context of damages for
mental distress arising from breach of contract.  “Aggravated damages”, as
defined by Waddams (The Law of Damages (1983), at pp. 562-63), and
adopted in Vorvis, at p. 1099,

describ[e] an award that aims at compensation, but takes
full account of the intangible injuries, such as distress and humiliation, that
may have been caused by the defendant’s insulting behaviour.

As many writers have observed,
the term is used ambiguously.  The cases speak of two different types of
“aggravated” damages.

52        The first are true aggravated
damages, which arise out of aggravating circumstances.  They are not awarded
under the general principle of Hadley v. Baxendale, but rest on a
separate cause of action — usually in tort — like defamation, oppression or
fraud.  The idea that damages for mental distress for breach of contract may be
awarded where an object of a contract was to secure a particular psychological
benefit has no effect on the availability of such damages.  If a plaintiff can
establish mental distress as a result of the breach of an independent cause of
action, then he or she may be able to recover accordingly.  The award of
damages in such a case arises from the separate cause of action.  It does not
arise out of the contractual breach itself, and it has nothing to do with contractual
damages under the rule in Hadley v. Baxendale.

53        The second are mental distress damages which do
arise out of the contractual breach itself.  These are awarded under the
principles of Hadley v. Baxendale, as discussed above.  They exist independent
of any aggravating circumstances and are based completely on the parties’
expectations at the time of contract formation.  With respect to this category
of damages, the term “aggravated damages” becomes unnecessary and, indeed, a
source of possible confusion.

[124]     Here, Ms.
Ladas has pleaded (although not in Part 1 of the NCC) that she has “suffered
sleepless nights, fear, anxiety, discomfort and emotional distress.”  However,
she has not pleaded the material facts required to support a claim for aggravated
damages in the true sense, and thus has failed to plead any reasonable claim
for aggravated damages.

(e)      Summary concerning s. 4(1)(a)

[125]     In
summary, based on the analysis above:

(a)      the
plaintiff has pleaded a reasonable claim under the Privacy Act (B.C.). 
This claim can be advanced by B.C. residents only;

(b)      the
plaintiff has pleaded a reasonable claim for breach of privacy based on the
statutes pleaded in the following paragraphs of Part 3 of the NCC:  paras. 10,
11 and 12.  Such claims can be advanced by residents of those provinces only;
and

(c)      the
plaintiff has pleaded a reasonable, non-statutory, claim for intentional breach
of privacy in respect of proposed class members in provinces without
legislation equivalent to the Privacy Act (B.C.).

[126]     The
plaintiff has failed to plead any reasonable claim in negligence for breach of
privacy.  She has failed to plead any reasonable claim for breach of security
rights or based on an absolute right to privacy.  She has failed to plead any reasonable
claim based on the statutes listed in paras. 9, 13, 14, 15, 16, 17, 18, 19, 20,
21 and 22 of Part 3 of the NCC.  She has also failed to plead a reasonable
claim under either the Sale of Goods Act or the BPA. 
Finally, the plaintiff has failed to plead any reasonable claim for aggravated
damages.

6.       Identifiable Class and Class Description: 
s. 4(1)(b)

[127]     The next
requirement that must be met for certification is that there is an identifiable
class of 2 or more persons.

[128]     Class
definition is critical because it identifies the individuals entitled to
notice, entitled to relief (if relief is awarded), and bound by the judgment: 
see Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC
46, at para. 38:

[129]     In Watson
v. Bank of America Corporation, 2014 BCSC 532, Bauman C.J.S.C. (as he
then was) summarized the requirements under s. 4(1)(b) as follows, at paras.
63-64:

[63]      . . . [T]he plaintiff
must provide some basis in fact for the existence of an identifiable class of
two or more persons.  The class must be clearly defined at the outset of the
litigation as doing so identifies the individuals entitled to notice under the CPA,
entitled to relief if the case succeeds, and bound by judgment unless they
opt-out: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46
at para. 38 [Dutton]; Sun-Rype Products Ltd. v. Archer Daniels
Midland Company, 2013 SCC 58 at para. 57.

[64]      To meet this requirement, the plaintiff must define
the class with reference to objective criteria.  Similarly, while the
definition should be rationally related to the alleged common issues, the
membership of the class must not hinge on the outcome of the litigation. 
Further, the class must not be defined too broadly or too narrowly in relation
to the common issues.  Ultimately, it is not necessary for the plaintiff to
identify every class member, but it must be possible to determine whether or
not a specific individual is a member of the class: Sun-Rype at paras.
52-62; Dutton at para. 38; Hollick at paras. 20-21.

[130]     In Hollick,
Chief Justice McLachlin commented on the task of defining the scope of the
class appropriately, at paras. 20-21 (underlining added):

20        . . . [I]mplicit in the
“identifiable class” requirement is the requirement that there be some
rational relationship between the class and common issues.  Little has been
said about this requirement because, in the usual case, the relationship is
clear from the facts.  In a single-incident mass tort case (for example, an
airplane crash), the scope of the appropriate class is not usually in dispute. 
The same is true in product liability actions (where the class is usually
composed of those who purchased the product), or securities fraud actions
(where the class is usually composed of those who owned the stock).  In a case
such as this, however, the appropriate scope of the class is not so obvious. 
It falls to the putative representative to show that the class is defined
sufficiently narrowly.

21        The requirement is not an onerous one.  The
representative need not show that everyone in the class shares the same
interest in the resolution of the asserted common issue. There must be some
showing, however, that the class is not unnecessarily broad – that is, that the
class could not be defined more narrowly without arbitrarily excluding some
people who share the same interest in the resolution of the common issue. 
Where the class could be defined more narrowly, the court should either
disallow certification or allow certification on condition that the definition
of the class be amended:  [citations omitted].

[131]     During the
hearing of the certification application, the plaintiff amended her proposed
class definition from what was pleaded in the NCC and in her notice of
application.  The class she now proposes to have certified is defined as:

All persons in British Columbia and elsewhere in Canada who
have purchased an iPhone 4, iPad or iPod as well as iPhone 3G and iPhone 3GS
that utilizes the software operating system known as iOS4.

[132]     The
plaintiff says that this definition satisfies the purpose of a class definition
in that it identifies persons who have a potential claim for relief, defines
the parameters of the lawsuit so as to identify those who will be bound by the
result, and describes persons entitled to notice.  The plaintiff says that the
class has been defined with reference to objective criteria and without
reference to the merits of the claims, and persons can readily identify whether
or not they fit into the class.

[133]     Apple says
that the proposed class definition does not satisfy the requirement under s.
4(1)(b) and cannot be amended to do so.  It says that the class definition is
too broad, and that the drafting is unacceptably ambiguous.  Apple says further
that the proposed class definition is not rationally connected to the proposed common
issues.  In addition, Apple says that, although the plaintiff seeks to include
non-residents of B.C. in the class definition, she has not provided for a
sub-class of such individuals as required by s. 6 of the CPA and
she has not identified an individual who can represent a non-resident subclass.

[134]     I will
deal first with Apple’s complaints about the drafting.

[135]     Apple says
that “all persons in British Columbia and elsewhere in Canada” is unclear and
ambiguous, since it is unclear what “in” means.  Assuming the plaintiff’s
intention was to say “all persons resident in British Columbia and
elsewhere in Canada,” and such a clarification were the only barrier to
certification, a request to amend would almost certainly be granted:  see, for
example, Douez, at para. 240 (citing Halvorson v. British
Columbia (Medical Services Commission), 2010 BCCA 267, at para. 23).

[136]     Apple also
complains that the use of the word “utilizes” in the proposed definition is
problematic.  Apple says that it implies that the class would consist of
persons who purchased an iOS Device that currently utilizes iOS 4, and that,
since Ms. Ladas ceased using her iDevice in May 2011, she would be excluded.

[137]     “Utilizes”
implies that it is the current situation that is relevant, so that, if
an iDevice in the past used iOS4, but the user updated the software to (say)
iOS5, the user would not fall within the class definition, because, currently,
the iDevice is not one that “utilizes” iOS4.  However, there was never any
request to use some other term.  Based on “utilizes,” what matters is the
operating system currently on the iDevice, not whether an individual is
currently using the iDevice.  Assuming, the operating system on Ms. Ladas’s
iPhone is still iOS4, she could fall within the class definition, even though
she has not used her iPhone since May 2011.

[138]     However,
in my opinion, there are other problems with the proposed class definition.

[139]     I will
first address the matter of the non-resident sub-class.

[140]     The
proposed class definition seeks to include persons outside of B.C.  Those
persons will not have any claim relying on B.C. legislation:  see Stanway,
above.  If claims by non-residents are going to be part of this action, there
needs to be a non-resident sub-class (or sub-classes).

[141]     However, the
plaintiff’s notice of application did not clearly seek as a term of the
certification order the establishment of a non-resident sub-class.  At best, it
might be inferred – from the proposed class definition, and the reference in
para. 6 of the “Order(s) Sought” to fixing the manner and time within which a
non-resident could opt in – that the plaintiff wishes to have a non-resident
sub-class certified.  However, no individual was nominated to be the
representative of a non-resident sub-class, and, in the evidence, no non-B.C.
resident is identified as someone who may have a claim, much less act as the
representative for a non-resident sub-class.  No argument was advanced in
submissions to justify certification of a non-resident sub-class.

[142]     In my
opinion, if the plaintiff wished to have a class defined to include
non-residents and a non-resident sub-class certified, she needed to do more
than what has in fact been done in the presentation of the certification
application.  In the circumstances, I agree with Apple’s submission on this
point, and based on the evidence before me, no non-resident subclass can be
certified.

[143]     This would
leave a potential class of B.C. residents only.

[144]     However, in
my opinion, the proposed class definition is both too broad and too narrow, and
is not rationally related to the proposed common issues.  Therefore, it does
not comply with the requirements for an acceptable class definition.

[145]     The
essence of the plaintiff’s complaint is that, as a consequence of the design of
the iOS4 operating system, her privacy, and the privacy of the proposed class
members, has been breached through their use of the iDevices.  However, the
proposed class definition is in terms of “All persons . . . who purchased”
an iDevice (underlining added).

[146]     Based on
this definition, the persons who purchased two of Ms. Ladas’s iDevices as gifts
for Ms. Ladas and her son would fall within the class.  But someone who simply
purchased – but did not use – an iDevice with the iOS4 operating system will
not have any claim.  Not only has the individual who made the purchase and then
given the iDevice to someone else not used Location Services, the individual
has not used the iDevice at all.  This is an illustration of how the class is
too broadly defined, to include persons who will not have any claim.

[147]     Moreover,
an individual who received an iDevice as a gift or from an employer, for
example, would be excluded from the class because the individual is not someone
who purchased the iDevice.  This is an illustration of how the class is
defined too narrowly, and arbitrarily excludes individuals who may have claims,
based on the theory advanced by the plaintiff.

[148]     Both examples
also show that the proposed class definition is not rationally related to the
alleged common issues, or to the claims advanced in the pleadings.  There is
nothing that connects the purchase of an iDevice with a breach (or even
a potential breach) of privacy because the iDevice uses iOS4.  The act of
making a purchase is neutral in relation to the essential complaints in the
action.

[149]     For these
reasons, the proposed class definition is unacceptable.  It fails to describe
an identifiable class.

[150]     In
addition to these problems, Apple says that the plaintiff has failed to demonstrate,
with admissible evidence, the existence of “2 or more persons” who assert a
claim in relation to the wrongs alleged in the NCC and who wish to pursue a
class proceeding.  Ms. Yates submits that the plaintiff has failed to meet even
the low standard set in Wakelam, where an affidavit from
plaintiff’s counsel was held to be sufficient to satisfy the evidentiary
requirement of s. 4(1)(b).

[151]     In Wakelam,
the material portion of the affidavit of plaintiff’s counsel (Mr. Green) stated
that he had “been informed by the following people that each of them are
interested in and support the class proceeding.”  After setting out the names
of these individuals, Mr. Green then continued:

I am advised by each of the individuals … and I verily
believe this to be true, that each purchased Children’s Cough Medicine as
defined in the Amended statement of claim, for children under the age of 6,
during the Class Period. For individuals who could not recall the specific
brand(s) of Children’s Cough Medicine they purchased this is indicated clearly
[above].

[152]     On the appeal
of the certification order, the Wakelam defendants submitted that
the evidence relied on by the certification judge was insufficient to satisfy
the burden on the plaintiff under s. 4(1)(b) of the CPA.  The
Court of Appeal disagreed.  Madam Justice Newbury wrote, at para. 105:

[105]    In the case at bar, I am satisfied that the
plaintiff did by means of Mr. Green’s affidavit demonstrate the existence of an
identifiable class of two or more persons in accordance with the authorities
and that accordingly, the certification judge did not err on this point.

[153]     Here, the
plaintiff has filed the Affidavit No. 5 of Marija Marcia, sworn November 26,
2013.  Ms. Marcia identifies herself as a legal assistant at the law firm of
Ms. Ladas’s counsel.  Ms. Marcia says:

2.         Attached as Exhibit
“A” is a List of Potential Plaintiffs/Class Members which represents a list of
people that have contacted our firm and expressed interest in being added as
members in this potential Class Action Proceedings [sic].

3.         Attached as Exhibit “B” collectively are Retainer
Agreements for Potential Plaintiffs/Class Members listed as number 1 to 17 on
Exhibit “A” herein.

That concludes Ms. Marcia’s Affidavit No. 5.

[154]     In
contrast to the affidavit of Mr. Green in Wakelam, Ms. Marcia
does not say that she has ever spoken to any of the persons listed on Exhibit
“A” to her affidavit.  She says nothing about how Exhibit “A” was compiled, or
whether she was the person who created it.

[155]     Exhibit
“B” consists of copies of retainer agreements for 17 (including Ms. Ladas) of
the 36 individuals listed on Exhibit “A”.  All 17 give an address as in B.C.  It
appears that two of the individuals (Megan Ritchie and Rahiman Sutter)
identified in Exhibit “A” and Exhibit “B” probably provided iDevices that were
examined by Mr. Graf when he prepared his report.  However, there is no
evidence from either individual.

[156]     The form
of retainer agreement is substantially the same for all of the individuals (apart
from Ms. Ladas) and provides in relevant part:

I, _________________, do hereby
hire [Law Firm] . . . , to represent me as legal counsel in my capacity as an
intended Plaintiff, Plaintiff, intended member of a class or subclass of
Plaintiffs or member of a class or subclass of Plaintiffs (“Plaintiff”) and,
for all purposes, in connection with a class action lawsuit filed in the
Supreme Court of British Columbia under Action Number S-112969 (the “Action”)
by Amanda Elizabeth Ladas against Apple Inc. for damages for violation of
privacy and breach of personal security arising from the use and operation of
my [  ] iPhone, [  ] iPad [  ], iPod Touch  ESN(s) __________________ since
its/their purchase on or about _________

1.         The Client wishes to join the Action as a
Plaintiff.

[157]     The
retainer agreements attached to Ms. Marcia’s affidavit say nothing about the
operating system in any iDevice.  In particular, none says a device “utilizes”
(the term used in the proposed class definition) iOS4.  Some of the agreements
(including the one apparently signed by Megan Ritchie) provide no information
at all about the iDevice.

[158]     So, Apple
is correct about the quality of the evidence here, as compared with the
evidence submitted in Wakelam.  I note that Mr. Justice Grauer’s
Reasons on the certification application in Wakelam (indexed at
2011 BCSC 1765), in which the evidentiary issue was discussed, were published
December 22, 2011, about 10 months before the notice of application for
certification and related affidavits were filed in this case, and almost 2
years before Ms. Marcia’s affidavit was filed.  Thus, the plaintiff was not
without guidance concerning presentation of evidentiary support for her
application when her material was filed.

[159]     However, does
it follow necessarily that the plaintiff has failed to meet her evidentiary
burden for purposes of s. 4(1)(b)?  The issue has recently been discussed by
Madam Justice Griffin in Douez.

[160]     Madam
Justice Griffin notes (at para. 212) that in Wakelam, the Court
of Appeal’s analysis did not conclude one way or the other that it was legally necessary
to have evidence that more than one person wishes to pursue a claim.  Rather,
the Court of Appeal’s conclusion was that the certification judge had not made
any error in accepting Mr. Green’s affidavit as meeting the evidentiary
burden.  The Court of Appeal did not need to express any opinion on whether
something less or different would be sufficient for purposes of s. 4(1)(b).

[161]     In Sun-Rype
Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58, [2013] 3
S.C.R. 545, the Supreme Court of Canada discussed the “identifiable class”
criterion at some length.  Mr. Justice Rothstein (who wrote the majority
judgment) said, at para. 57:

[57]      I agree with the courts that have found that the
purpose of the class definition is to (i) identify those persons who have a
potential claim for relief against the defendants; (ii) define the parameters
of the lawsuit so as to identify those persons who are bound by its result;
(iii) describe who is entitled to notice of the action [citations omitted]. Dutton
states that “[i]t is necessary . . . that any particular person’s claim to
membership in the class be determinable by stated, objective criteria” (para.
38). According to Eizenga et al., “[t]he general principle is that the class
must simply be defined in a way that will allow for a later determination of
class membership” (§ 3.33).

[162]     Mr.
Justice Rothstein did not say that, in addition, there was a need to show that
there are two or more persons interested in pursuing the claim or claims at
issue.  Rather, the focus was on whether there was some basis in fact to
conclude that two or more persons would be able to determine if they were in
fact a member of the class:  see paras. 57, 69, 72 and 77.  Without evidence on
that point, there was no identifiable class.

[163]     In Douez,
Madam Justice Griffin concluded, at paras. 228-230:

[228]    I find the reasoning in
the Keatley Appeal [Keatley Surveying Ltd. v. Teranet Inc.,
2014 ONSC 1677 (Div. Ct.)] compelling:

(a)        the CPA does not impose
a requirement that the plaintiff must show that there are two or more people in
the proposed class that are desirous of pursuing such a claim;

(b)        Supreme Court of Canada
jurisprudence also does not import such a requirement; and,

(c)        entrenching such a requirement
could undermine the goals of the CPA.

[229]    On the latter point, it
can often take some courage to come forward to advance a claim in the courts. 
Individuals who have been wronged can fear that the social or political or
economic repercussions of bringing forward a claim will outweigh the potential
benefits to them personally, even if the wrong on a global scale is quite
large.  . . .

[230]    I conclude that showing some basis in fact that two or
more persons are in the proposed class is all that is necessary under the CPA
and there is no additional requirement of showing that two or more persons are
interested in pursuing a claim.  The courts’ role as gatekeeper can be
adequately performed based on the existing requirements of the CPA.

[164]     I agree
with Madam Justice Griffin’s analysis and her conclusions.

[165]     However, in
my opinion, the evidence in this case (and in contrast to the evidence before
the court in Douez and in Wakelam), fails to
satisfy the burden on the plaintiff.  Although the burden is not an onerous
one, Ms. Marcia’s Affidavit No. 5 is not admissible to prove that anyone
(including Megan Ritchie and Rahiman Sutter) purchased an iDevice that
“utilizes” iOS4, and there is no other evidence on the point.  Thus, there is
insufficient evidence that two or more persons fall within the proposed class
description.

[166]     In
summary, I find that the proposed class definition does not satisfy the
requirement under s. 4(1)(b) of the CPA.  The proposed class
definition is, at the same time, too broad and too narrow, and it is not
rationally related to the proposed common issues.  There is no basis to certify
a non-resident sub-class.  In addition, the plaintiff has failed to satisfy the
evidentiary burden on her to show that two or more persons fall within the
proposed class definition.

[167]     I have
considered whether the plaintiff should be given the opportunity to try and
salvage her case on this requirement.  I have concluded that she should not.

[168]     The difficulties
with the proposed class definition were not obscure or technical.  When a
problem with the original class definition (which had been flagged in Apple’s
written submissions and would have meant that Ms. Ladas herself did not fall
within the class) was discussed during the hearing, the current class
definition was proposed.  The plaintiff’s position is that this definition
satisfies the requirements of s. 4(1)(b).  No other possible amendments
were suggested or identified.  I am not inclined to attempt to craft something
on my own:  see Ragoonanan v. Imperial Tobacco Canada Ltd., 2005
CanLII 40373, 78 O.R. (3d) 98 (S.C.J.), at paras. 47-48.

7.       Common Issues – s. 4(1)(c)

[169]     I have
concluded that the plaintiff has failed to satisfy the requirement under s. 4(1)(b)
to show some basis in fact that there is an identifiable class of 2 or more
persons.  A failure to satisfy any one requirement under s. 4(1) of the CPA
would justify dismissal of the certification application.  However, even if the
plaintiff had been able to satisfy the requirement that there be an
identifiable class, in my opinion, the plaintiff has failed to satisfy the
“common issues” requirement under s. 4(1)(c).

[170]     Resolution
of common issues is the heart of a class proceeding.  Section 4(1)(c) of
the CPA requires the plaintiff to provide some basis in fact for
concluding that at least some of the issues raised by the claims are either
“common but not necessarily identical issues of fact” or “common but not
necessarily identical issues of law that arise from common but not necessarily
identical issues of fact.”

[171]     In Dutton,
Chief Justice McLachlin explained (at para. 39) that the underlying question
when analyzing commonality is “whether allowing the suit to proceed as a [class
proceeding] will avoid duplication of fact-finding or legal analysis.”  In Pro-Sys,
Mr. Justice Rothstein conveniently summarized the other holdings of Dutton
regarding commonality as follows (see Pro-Sys, at para. 108,
citing Dutton, at paras. 39-40):

(1)        The commonality question should
be approached purposively.

(2)        An issue will be “common” only
where its resolution is necessary to the resolution of each class member’s
claim.

(3)        It is not essential that the
class members be identically situated vis-à-vis the opposing party.

(4)        It [is] not necessary that
common issues predominate over non-common issues.  However, the class members’
claims must share a substantial common ingredient to justify a class action.  The
court will examine the significance of the common issues in relation to
individual issues.

(5)        Success
for one class member must mean success for all.  All members of the class must
benefit from the successful prosecution of the action, although not necessarily
to the same extent.

[172]     As Chief
Justice Bauman noted in Watson, at para. 67:

[67]      The Court recently clarified the final point and
held that “success for one member of the class does not necessarily have to
lead to success for all the members.  However, success for one member must not
result in failure for another” (Vivendi Canada Inc. v. Dell’Aniello,
2014 SCC 1 at para. 45).  Further, questions may be common even if the answers
to those questions vary from class member to class member (Vivendi at
paras. 45-46).  In any event, concerns about unproven material differences are
not determinative at certification.  If they actually emerge during the
proceeding, Courts can deal with them when the time comes, through
decertification if necessary [citations omitted].

[173]     In Rumley
v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, at para. 29,
Chief Justice McLachlin acknowledged the potential danger of framing a common
issue too broadly:

[29]      There is clearly something to the appellant’s
argument that a court should avoid framing commonality between class members in
overly broad terms.  . . . It would not serve the ends of either fairness or
efficiency to certify an action on the basis of issues that are common only
when stated in the most general terms.  Inevitably such an action would
ultimately break down into individual proceedings.  That the suit had initially
been certified as a class action could only make the proceeding less fair and less
efficient.

[174]     However, Chief
Justice McLachlin also noted (at para. 33) that, under the CPA, “the
question at the commonality stage is . . . quite narrow.”

[175]     During the
hearing of the certification application, the proposed common issues were
revised, and the plaintiff now seeks certification of the following issues:

(a)      Has
the Defendant violated the privacy rights of class members by the design,
production, distribution and/or operation of iOS4?

(b)      Does
the recording of locational data including geographic locations, dates and
times by iOS4 and the copying of that data to other computers to which iOS4
devices are backed up or synchronized with and the transmission of that data to
the Defendant constitute a deceptive act or practice that has the capability,
tendency or effect of deceiving or misleading class members?

(c)      If
iOS4 is found to have recorded locational data including geographic locations,
dates and times and copied that data to other computers with which iOS4 devices
were backed up or synchronized with and that data was transmitted to the
Defendant in a systematic fashion are the class members entitled to aggravated,
punitive and/or exemplary damages?

[176]     Proposed
common issue (b) is based on a claim under the BPA.  However, I
have concluded that no reasonable claim has been pleaded under the BPA. 
Therefore, proposed common issue (b), either in its original form or its
revised form, cannot be certified.

[177]     Moreover, as
I noted above, there is no allegation in the NCC that any data is transmitted
to Apple.  Since, based on the pleadings, transmission is not an issue of fact
in the case, there would be no point in having an issue concerning transmission
certified as a common issue.  This comment applies to both proposed common
issues (b) and (c).

[178]     Proposed
common issue (a) arises out of the only claim to survive following my analysis
under s. 4(1)(a):  the breach of privacy claim.  For B.C. residents, that claim
exists under the Privacy Act (B.C.) only; there is no common law
claim available.

[179]     Proposed
common issue (a) endeavours to focus on Apple’s conduct (“design, production,
distribution and/or operation of iOS4”).  This is often an effective way to
frame a common issue.

[180]     But the issue
raised is whether Apple’s conduct violates the plaintiff’s and class members’
privacy rights; in other words, whether Apple is liable under the Privacy
Act.  Resolution of proposed common issue (a) requires the court to
look not only at Apple, but also at the individual circumstances of the
plaintiff and other proposed class members in order to make a determination of
the issue on the merits.  As Madam Justice Griffin pointed out in Douez
(at para. 283), the subjective elements of reasonableness and context are relevant
under ss. 1(2) and (3) of the Privacy Act (B.C.).

[181]     This point
is illustrated by Mr. Justice Walker’s analysis in Heckert v. 5470
Investments Ltd., 2008 BCSC 1298, a case that Mr. Justice Walker
described (at para. 1) as involving “the competing claims of a tenant’s right
to privacy and a landlord’s right to protect its property and its obligation to
protect the interests of other tenants in a residential apartment building.” 
The plaintiff alleged that, by the placement of a camera on the floor where her
apartment was located, the landlord had, in effect, placed her under video
surveillance and therefore breached her privacy.  Mr. Justice Walker wrote, at
paras. 75-76:

[75]      Simply adopting an
explanation or definition of privacy does not, of itself, determine a person’s
rights since the Privacy Act provides that an individual’s right
to privacy, as well as a defendant’s obligation not to violate it, are not
fixed: Davis, S.C. at 254.  This point is made clear in s. 1(2)
of the Privacy Act which entitles citizens to a privacy interest
that is reasonable in the circumstances.

[76]      The concept of privacy
has an inherent elasticity and requires that all of the varying circumstances
of each case be taken into account: Davis, S.C. at 255.  The
Court of Appeal said in Davis at 763-764:

It is plain that whether there has
been a violation of the privacy of another must be decided on the particular
facts of each case.  As the learned Judge below said in his reasons for
judgment…: “It is necessary to consider all of the circumstances before
determining ‘The nature and degree of privacy to which a person is entitled,’
s. 2(2).”

Mr. Justice Walker also noted (at paras. 83-84) the
“contextual approach” that had been adopted by courts dealing with claims that
video surveillance breached privacy rights.

[182]     The
plaintiff has not shown any basis in fact to conclude that reasonableness and
context could be proved on a class-wide basis.

[183]     In
addition, one of the factual issues on which a defendant’s liability under the Privacy
Act (B.C.) depends is whether Apple acted “without a claim of right”
(see s. 1(1)).  Another is whether the act or conduct complained of was
consented to by a person entitled to consent (see s. 2(2)(a)).  The plaintiff
has not shown a basis in fact to conclude that either of these issues could be
proved on a class-wide basis.  They are individual issues.

[184]     Of course,
a common issue does not need to be determinative of liability.  It simply needs
to move the litigation forward.  I do not know whether it would be possible to
draft a more surgical issue or issues in this case that would meet the
commonality requirements described in the authorities.  Often, separate – and
common – factual issues can be embedded in liability issues, and these factual
issues may satisfy the definition of “common issue” under the CPA. 
However, here, nothing else has been proposed by the plaintiff.

[185]     In my
opinion, proposed common issue (a) is an example of an issue drafted at a high
level of generality so as to appear common, when it is not.  Based on the
language in the Privacy Act (B.C.) and the cases interpreting it,
a determination of proposed common issue (a) will require the determination of
individual issues.  It cannot be certified as a common issue.

[186]     Proposed
common issue (c) seeks to have an entitlement to “aggravated, punitive and/or
exemplary damages” certified as a common issue.

[187]     I concluded
above that the facts pleaded in the NCC did not state a reasonable claim for
aggravated damages.  However, there is an additional problem.  Aggravated
damages are compensatory damages and may only be awarded for that
purpose:  see Vorvis v. Insurance Corporation of British Columbia,
[1989] 1 S.C.R. 1085, at p. 1099.  They are intended to augment ordinary
compensatory damages.  Any entitlement to aggravated damages is clearly an
individual issue.

[188]     “Punitive
damages” and “exemplary damages” are not two different things.  Rather, as
McIntyre J. explains in Vorvis (referring to Waddams, The Law
of Damages (2nd ed. 1983), at p. 562, para. 979), they are different
names for the same thing.  It is unnecessary to plead both of them, and
improper to plead them as alternatives.  However, this is not the only
difficulty with proposed common issue (c).

[189]     There are
examples where a defendant’s liability to pay punitive damages has been
certified as a common issue (see, e.g., Watson and Pro-Sys). 
The ultimate determination of the plaintiff’s and class members’ entitlement
to and quantification of punitive damages must be deferred until the
conclusion of individual trials concerning liability and compensatory damages. 
However, often in these cases, an element (or some elements) of a claim for
punitive damages can be certified as a common issue.  For example, the question
of whether a defendant’s conduct was sufficiently reprehensible or high-handed
to warrant punishment can be determined as a common issue at a trial where
other common issues (or at least one other common issue relevant to the
defendant’s conduct) will be determined.  See, for example, Fakhri v.
Wild Oats Markets Canada, Inc., 2004 BCCA 549 and Chalmers v. AMO
Canada Company, 2010 BCCA 560, at paras. 31-33.

[190]     However,
even if there were no problems with proposed common issue (c), or even if the
problems I have identified could be rectified by some redrafting, it cannot be
certified as a common issue on its own.

[191]     The
plaintiff has failed, therefore, to satisfy the requirement under s. 4(1)(c) of
the CPA.

8.       Preferable Procedure – s. 4(1)(d)

[192]     In view of
my conclusions that there is no identifiable class and that there are no issues
that can be certified as common issues, I do not see any utility in discussing
the requirement under s. 4(1)(d), that “a class proceeding would be the
preferable procedure for the fair and efficient resolution of the common
issues.”  There is no point discussing whether a class proceeding would be
preferable to resolve issues that I have concluded are not found in this case.

9.       The representative Plaintiff and
Litigation Plan – s. 4(1)(e)

[193]     Again, in
view of my conclusions regarding. s. 4(1)(b) and (c), I will comment on the
s. 4(1)(e) requirement only briefly.

[194]     In Watson,
Bauman C.J.S.C. summarized the applicable principles as follows (at paras.
71-75):

[71]      Finally, under
subsection (e), the plaintiff must show some basis in fact that she is an
appropriate representative plaintiff with reference to the three specified
requirements of the CPA.  First, the plaintiff must fairly and
accurately represent the interests of the class.  The Court considered the
nature of this requirement in Dutton (at para 41):

[41]      . . . In assessing whether the
proposed representative is adequate, the court may look to the motivation of
the representative, the competence of the representative’s counsel, and the
capacity of the representative to bear any costs that may be incurred by the
representative in particular (as opposed to by counsel or by the class members
generally). The proposed representative need not be “typical” of the class, nor
the “best” possible representative. The court should be satisfied, however,
that the proposed representative will vigorously and capably prosecute the
interests of the class [citations omitted].

[72]      Further, the most
important attributes of a representative plaintiff are a common interest with
class members and the ability and desire to vigorously prosecute the claims
[citations omitted].

[73]      Second, the plaintiff
must have a litigation plan with a workable method of advancing the proceeding
and of notifying the class members. The purpose of this requirement was
described in Fakhri v. Alfalfa’s Canada Inc., 2003 BCSC 1717 at para.
77:

[77]      The purpose of the plan for proceeding at the
certification stage is to aid the court by providing a framework within which
the case may proceed and to demonstrate that the representative plaintiff and
class counsel have a clear grasp of the complexities involved in the case which
are apparent at the time of certification and a plan to address them. The court
does not scrutinize the plan at the certification hearing to ensure that it
will be capable of carrying the case through to trial and resolution of the
common issues without amendment. It is anticipated that plans will require
amendments as the case proceeds and the nature of the individual issues are
demonstrated by the class members [citations omitted].

[74]      Moreover, the plan must
support the idea that a class action is the preferable procedure for the
resolution of the claim. The amount of detail in the plan must correspond to
the circumstances and the complexity of each specific case, but the plan must
at least be individualized and not a mere outline of the steps that would occur
in any case.  The plan must also deal with individual issues that will be left
over after the common issues are resolved [citations omitted].

[75]      Third, the plaintiff must not have a conflict of
interest with other class members on the common issues.

[195]     My
comments will focus on the proposed litigation plan, which is contained in Ms.
Ladas’s Affidavit No. 2.

[196]     Some of
the statements made by Ms. Ladas about the litigation plan can be given no
weight.

[197]     For
example, in para. 10, under the heading “Evidence of Class Members,” Ms. Ladas
says:

Class counsel have collected documentary evidence from
identified class members.  . . .

[198]     Ms. Ladas
could only know what class counsel had done if she had been told about it, so
her evidence is disguised hearsay.  Hearsay evidence would be admissible,
however Ms. Ladas does not identify the source of her information or say that
she believes it to be true.

[199]     Moreover,
based on Ms. Ladas’s evidence on cross-examination, the “documentary evidence”
referred to in para. 10 of her affidavit appears to be contact information of
individuals who have expressed an interest in the litigation.  Ms. Ladas was
not aware of anything else.  The statement in her affidavit implies that more
has been done to advance the case, and is somewhat misleading.

[200]     In para.
12, Ms. Ladas says:

Discovery of individual class members is not likely because
all class members are similarly situated both factually and documentarily.

[201]     Ms. Ladas
could not have any personal knowledge of facts that would allow her to express
the conclusion (and opinion) that “Discovery of individual class members is not
likely.”  On cross-examination, when asked to explain why she thought others
would be similar to her, Ms. Ladas said that that was what she was instructed
by her lawyer.  She acknowledged that she had not had discussions with anyone
else.

[202]     The cause
of action described in s. 1 of the Privacy Act contemplates an
examination of individual circumstances and context to determine whether a
breach of privacy has occurred.  This is a necessary part of the case.  But in
the proposed litigation plan it is addressed in only the most superficial way –
by the proposal to have a case management conference after determination of
common issues.

[203]     A
litigation plan can be quite spare and simple, provided spare and simple are
suitable for the case.  The plan can be amended as the case develops, if
amendments are required.  However, I was not provided with any examples in the
decided cases where the type of litigation plan that Ms. Ladas describes was
judged acceptable.

[204]     In my
opinion, the plaintiff has failed to produce a plan for the proceeding that
sets out a workable method of advancing the proceeding.  The litigation plan
presented here fails to demonstrate that the representative plaintiff and class
counsel have a clear grasp of the potential complexities involved in this case,
and a plan to address them.

[205]     In its
written and oral submissions, Apple advanced additional reasons why I should
find that Ms. Ladas is not an adequate representative plaintiff.  However, in
the circumstances, I do not consider it necessary to discuss them.

10.     Summary and Disposition

[206]     In
summary, the plaintiff has satisfied the requirement under s. 4(1)(a) with
respect to her claim under the Privacy Act (B.C.) and similar
legislation in 3 other Provinces, and (for those Provinces without such
legislation) with respect to her claim for intentional breach of privacy. 
However, she has not pleaded a reasonable claim under the BPA. 
The plaintiff has failed to satisfy the requirements under s. 4(1)(b)
(identifiable class) and s. 4(1)(c) (common issues).  In view of my
conclusions on ss. 4(1)(b) and (c), I have not addressed the requirement
under s. 4(1)(d) and made only brief comments regarding s. 4(1)(e).

[207]    
As a result, the plaintiff’s certification application is dismissed.

_______ “Adair J.”________________________

The
Honourable Madam Justice Adair