In March 2024, four of the largest school boards in Canada commenced legal action against three social media companies: Meta (operating Instagram and Facebook); ByteDance (operating TikTok); and Snap (operating Snapchat). Each of the boards claim that these companies negligently designed their products to cause compulsive use amongst student-age children, resulting in widespread disruption to the education system. The boards also advance their claims in public nuisance.
On February 26 and 27, 2025, Justice Leiper heard a motion brought by the social media defendants pursuant to Rules 21.01(b) to strike the claim of the Toronto District School Board (TDSB)—the largest school board in Canada—on the basis that it was plain and obvious the claim could not succeed. On March 7, 2025, Justice Leiper released her decision, appending TDSB’s claim, dismissing the motion of the social media companies in its entirety.
The Legal Framework on a Motion to Strike
Justice Leiper outlined the applicable legal framework on a motion to strike by summarizing the relevant legal principles. First, the facts pleaded in the statement of claim must be taken as true. Second, while the court has jurisdiction and power to strike out claims in the interests of effective, efficient and fair litigation, it must take a generous approach and permit arguable claims to proceed. Lastly, a novel duty of care does not mean that a claim has or does not have merit. A novel duty of care can be assessed at the motions stage by applying the Anns/Cooper-Hobart test to the facts as pleaded to determine whether it is plain and obvious that no such duty of care can be recognized. This was the exercise undertaken by Justice Leiper.
The Duty of Care Issue
The defendants argued that they could not owe a duty of care to TDSB because there is no proximity between them and because there are policy reasons to negate such a duty. TDSB argued that a novel duty of care can be established and that its claims are a recoverable form of relational economic loss.
- Proximity: Who is My Neighbour?
In framing the proximity analysis, the court reiterated first principles by citing Donoghue v. Stevenson, 1932 CanLII 536 (FOREP) and Anns, and then summarizing La Forest J in Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165:
“proximity” means that the circumstances of the relationship between the plaintiff and the defendant are of such a nature that the defendant may be said to be under an obligation to be mindful of the plaintiff’s legitimate interests in conducting his or her affairs. (para 33)
Her Honour accepted that by targeting students and schools, as pled, the social media companies put themselves into a relationship with TDSB such that proximity may be found.
The court also reviewed jurisprudence on relational economic loss, citing the relevance of the relationship between the board and its students in assessing proximity between the board and the social media companies. Justice Leiper agreed the board owing to its students heightened obligations of care and guidance informs the proximity analysis. Further significance was placed on the role of the defendants in relation to TDSB:
In terms of legal proximity, I find that the Board has a reasonable claim to a duty of care from social media companies that targets school-aged children, including students during school hours and in doing so, carelessly damages their attention-span, psychological safety, and well-being. (para 64)
Foreseeability:
Justice Leiper summarized the proper question on foreseeability: Whether the plaintiff has offered facts to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged (para 67, citing Rankin Garage). Justice Leiper accepted the board’s claim that educational disruption and losses incurred by it were objectively foreseeable because they were wilfully occasioned by the defendants.
- Residual Policy Factors
The court recognized that while policy factors can be considered on a motion to strike, applying them in a vacuum and without the benefit of a record is contrary to the principle on which the case law has been understood to develop. Justice Leiper nonetheless addressed the defendants’ policy concerns.
With respect to indeterminate liability, the court agreed that while it may be a limiting factor in some circumstances, in the immediate case there was a difference between indeterminate and significant liability. The defendants have created a business model that invites significant liability: it incentivizes the growth of their user numbers and prolongs the use of their products. They cannot now shield themselves from that liability on the basis that it is indeterminate.
The court also did not accept that the liability exposure is in fact indeterminate. Justice Leiper suggested that the potential exposure of the defendants is, in fact, knowable: There is a finite quantity of school boards affected by their own choices. Regardless, a robust proximity analysis will often function as a guardrail and address indeterminacy concerns.
The defendants also raised the issue of Canada’s Treaty Obligations under Article 19.17.2 of the Canada-United States-Mexico Agreement (CUSMA). The article states that Canada may not “adopt or maintain measures that treat interactive computer service providers as information content providers in determining liability for harms related to information made available by the service, unless the service provider created or developed it.” The court determined this was at most a triable issue, although Justice Leiper acknowledged that many of the allegations made by TDSB were not content-specific and were rather related to design.
Justice Leiper cited the recent U.S. decision in Anderson v. TikTok, in which a 10-year-old girl was tragically found deceased from asphyxiation after mimicking a “blackout challenge” video sent to her by her “For You Page” on TikTok. In that case, the appellate court found that there could still be liability on TikTok even though the actual video content was created by a third-party. TikTok was aware that the challenge was spreading through its app and its algorithm was designed to feed it to children. Justice Leiper reiterated that in Anderson v. TikTok, the court found that no one would interpret legislative immunity clauses to “permit casual indifference to the death of a ten-year-old girl.”
Another policy factor raised by the defendants to negate a prima facie duty of care related to the nature of the board’s funding decisions. They argued that as governmentally funded entities, the alleged costs expended to deal with the effects of social media companies are discretionary such that the courts should not undertake an exercise of assessing what is essentially public budget policy. The court disagreed.
Justice Leiper found that both public and private actors may claim for anticipated losses in tort based on past harms. The evidentiary scrutiny that would apply at trial in assessing the TDSB’s claim would be the same exercise undertaken by the court in any other tort action.
The Public Nuisance Issue
The defendants argued that the board has no legally viable action in public nuisance because it lacks standing and has not suffered special damages. The court disagreed, recognizing that interference with students’ health and educational outcomes could potentially constitute a public nuisance requiring a remedy. Justice Leiper stated it was not plain and obvious that TDSB did not have an individual claim for public nuisance for the special damages it suffered from the Defendants products damaging access to public education.
Conclusion
Justice Leiper’s decision allows TDSB and several other school boards to continue their fight to seek accountability from social media companies. It also brings the law, and first principles, into the modern era where the proliferation of cyber-based conduct and harm continues to pose significant societal challenges.
