Reasons for a Policy

On a few occasions, the Canadian Bar Association has received requests from class action counsel or named litigants requesting removal of information or the entire class action from the National Class Action Database (the Database). The reasons for the requests have ranged from simply that the action has been settled or discontinued, to privacy concerns relating to plaintiffs’ names or personal information appearing in “Google searches” as a result of the class action’s presence on the Database, to businesses subject to a settled class action objecting to it remaining on the Database. This Policy is meant to respond to these requests. 

We take seriously the privacy of class action litigants and wish to minimize any deterrence to accessing justice as a result of the risk that personal information may be searchable on the internet due to its inclusion in the Database. At the same time, repeated deletions of class actions from the Database would destroy its use not only for historical research, but also for contemporary research by class action counsel assessing whether an action should be commenced. It may also impede potential class action claimants seeking information about whether a claim or settlement has already been made in relation to their potential cause of action. Class action claimants, by participating in a class action, may be taken to have already agreed to a certain degree of publicity in relation to their claim; many (or arguably, most) class actions result in decisions on readily accessible internet databases of court decisions. That being said, courts and administrative tribunals are increasingly sensitive to the amount of personal information found in decisions, and many have taken steps to limit such information to that which is strictly necessary and relevant.

The CBA has taken the interim step of communicating with Google to attempt to ensure that information from our database does not appear in search results. These communications and Google’s subsequent responses appear to have reduced such problems and we will endeavor to continue to monitor the situation and communicate with Google where appropriate.

The Policy

1. (a) The CBA will accept for filing documents that have personal information irrelevant to the substance of the class action, redacted. This information would typically include personal addresses, telephone numbers, income information, and other similar, unique, identifying information contained within the body of the documents. The CBA will not accept for filing class actions with redactions from the style of cause.

2. (b) Class action counsel or a class action claimant may contact the CBA at any time to replace any document filed prior to the implementation of this Policy, with a document redacted in accordance with section 1(a) of this Policy.

3. The CBA will not remove any class actions from the Database absent direction from the court of the relevant jurisdiction or an administrative tribunal with authority to make an order requiring removal. The CBA will, at any time, update the listing of a class action to reflect the fact that it has been settled, dismissed, discontinued or otherwise disposed of, upon notification to CBA by counsel.

4. Upon the passage of five years’ time from the date of filing with the Database, class action counsel or a class action litigant may contact the CBA to request that the documents on the database be replaced with documents that have the name of the litigant redacted from the style of cause. The CBA will assess the impact of such a request on the precedential value of the material, and the effect on the litigant’s privacy. If, in the CBA’s opinion, the effect of the redaction is minimal and the impact on the litigant’s privacy significant, it will comply with the request. This section of the Policy applies only to class actions that have been settled, dismissed, discontinued or otherwise disposed of, prior to the request being made.

5. Counsel or litigants requesting the replacement of documents with redacted documents shall provide the redacted documents in PDF form to CBA for posting on the Database.

6. Any requests related to the implementation of this Policy may be sent to: classaction@cba.org.

Court Compliance

Many court practice notices, directions, and rules across the country now require registration of a class action and submission of related documents to the CBA Class Action Database. The courts are the masters of their own processes; if counsel have any questions about whether redacted documents continue to comply with the requirements of their jurisdictions, these questions should be referred to their respective courts.