Not in Canada You Say? – Mark Zuckerberg Dodged Corporate Officer Liability Under US Law– What if he’d been sued in Canada?
October 15, 2025
BY Greg Blue
In both Canada and the U.S., Meta and other social media companies are being sued for allegedly designing their algorithms to produce addictive usage by children and adolescents. In the legal action started in Canada by the Toronto District School Board, only social media companies are being sued, not any individuals.[1]
In contrast, some of the American plaintiffs consisting of parents, school boards, and a few state attorneys-general initially sued Mark Zuckerberg personally as well as Meta and other social media companies.[2] Mark Zuckerberg is well known as a co-founder of Facebook (later Meta) and the chair of the board of directors, CEO and controlling shareholder of Meta.
The manner in which the attempt to make Zuckerberg personally liable for damage allegedly caused by Meta has played out in the US litigation provides an interesting opportunity to compare how it might have played out in Canada, where the law concerning liability of individual corporate insiders for a corporate tort appears less clear and possibly less favourable to defendants than in the US, and where courts seem to take a more lenient approach to the adequacy of pleadings.
The consolidated U.S. actions are being conducted in the federal District Court for the Northern District of California. In a pre-trial decision, that court gave Zuckerberg a pass. It dismissed the claims as against him because it found the allegations of participation in an alleged strategy of concealment and misrepresentation by Meta concerning the safety of Facebook and Instagram were “insufficient to meet the standard for corporate-officer liability.”
The US plaintiffs had specifically alleged that in 2018 Zuckerberg was provided with a report estimating that there were four million children under 13 using Instagram. He was also given a report indicating increased use of Facebook was associated with body image concerns, idealization of thinness, and increased dieting amongst girls aged 10-12 in particular. These allegations went to Zuckerberg’s alleged knowledge that over-consumption of the social media platforms was potentially injurious to juvenile users.
Other allegations were that Zuckerberg nevertheless prioritized increase user engagement by expanding the quantity of notifications sent to users of the platforms and ignored expert advice and academic research in overruling an internally proposed ban on camera filters simulating plastic surgery. These allegations were predicated on Zuckerberg having acted as the “guiding spirit” behind Meta’s development and marketing of social media to youth.
There were additional allegations against Zuckerberg that he had made public statements about the safety of Meta platforms without disclosing hazards of compulsive over-use, but the court had already ruled in an earlier application that Zuckerberg was not under any duty to disclose this information in the absence of a “special relationship” between himself and the plaintiffs. None existed, because there had been no interactions between Zuckerberg himself and the plaintiffs.
The US District Court found that the allegations “were not sufficient to plausibly allege that Zuckerberg directed the suppression of material information.” As such, they did not meet the standard to impose liability against Zuckerberg in his personal capacity under what is known in US law as “corporate-officer liability” in any of the states involved in the multi-jurisdictional litigation against Meta. In order to meet that standard for imposing personal liability for a tort committed by a corporation, the officer or director must have participated in, authorized, or directed the commission of the tort.
Contrasts Under Canadian Law
If the same claims had been made in the Canadian action and Zuckerberg had applied to strike them out at the pre-trial stage, there would have been fairly good chance of a different result.
Zuckerberg’s application was under a federal rule of procedure that allows a legal action to be dismissed if it does not set out a claim on which relief can be granted. In deciding the application, the US District Court applied a test based on case law of whether the claims had “at least a plausible chance of success.”
The equivalent kind of pre-trial application in the common law provinces and territories of Canada is to have an opposite party’s pleading struck out for failure to set out a valid claim or defence. A Canadian court faced with that kind of application would ask itself whether it is “plain and obvious” that the claim or defence that is pleaded has “no reasonable prospect of success.” The Ontario Superior Court applied the “plain and obvious…no reasonable prospect of success” test in the Canadian action by the Toronto District School Board when Meta and the other social media company defendants applied unsuccessfully to have that action struck out.[3] The Canadian test sets a higher bar to strike out a pleading at the pre-trial stage than the American one appears to set.
U.S. law is also relatively protective of directors and officers in relation to personal liability for torts committed by their companies. U.S. case law requires a fairly high level of individual involvement in a tort to amount to “participation” that will make a director or officer personally liable along with the corporation. The District Court for Northern District of California obviously considered the plaintiffs’ characterization of Zuckerberg’s involvement in the marketing of social media to youthful consumers to have been tangential to the harm alleged, although it included the making of critical decisions about Meta’s marketing strategy.
The law on the personal liability of directors and officers in Canada is less firmly established. As in the U.S., liability does not arise merely from being a director or officer or from having control over corporate behaviour, but certainty ends there.
There are two distinct dominant streams of case law in the common law jurisdictions of Canada (all the provinces and territories other than Québec, which has a civil law system). One takes a very restrictive position on personal liability of directors and officers as long as they act in good faith within their authority in the interests of the corporation. Under this stream, liability would rarely be found in the absence of fraud, acting outside one’s authority, or pursuing an interest other than that of the corporation.
The other dominant stream of case law in common law Canada imposes personal liability on a much more expansive basis irrespective of whether directors or officers have acted in good faith in the interests of the corporation.
How claims like those brought against Zuckerberg in the U.S. litigation might be handled if they were brought in Canada could depend on which of the two streams is preferred by the court where they are heard or the particular judge ruling on them. The more restrictive stream is regularly followed in Alberta, and the less restrictive one tends to be followed in the other common law provinces and territories, though not consistently. Elsewhere in Canada outside Quebec, the same courts are seen to apply both approaches, so what body of case law is followed can vary from case to case.
Given the two divergent streams of authority on the liability of directors and officers, it is possible that a court in a common law province or territory of Canada following the restrictive stream might have struck out the claims pleaded against Zuckerberg personally in the Meta litigation as did the District Court for the Northern District of California. If the Canadian court preferred the more expansive stream, it seems likely the action would at least have been allowed to proceed to trial, given the higher procedural bar for striking out pleadings in Canada.
Zuckerberg might count himself fortunate to have been sued in the U.S., where the roll of the dice was possibly more predictable.
[1] Toronto District School Board v. Meta Platforms Inc. et al., 2025 ONSC 1499. The Canadian action is for recovery of economic losses to the school system due to disruption of education from students’ compulsive use of the defendants’ social media platform. The American actions still pending are based on personal injury and wrongful death allegedly inflicted by a deliberate or negligent failure by the defendants to warn of product hazards.
[2] In re Social Media Adolescent Addiction / Personal Injury Products Liability Litigation, 4:22-md-3047-YGR (N. Dist. Cal.)
[3] Note 1 above.
