ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HEATHER DREW
Plaintiff
- and -
WALMART CANADA INC. and PNI DIGITAL MEDIA INC.
Defendants
Sean A. Brown and Erin VanderVeer, for the Plaintiff
Venessa Vuia, for Sherry Banadyga, Plaintiff in Saskatchewan action
David Byers, and Vanessa Voakes for the Defendant PNI Digital Media Inc.
Molly Reynolds for the Defendant Walmart Canada Inc.
Proceeding under the Class Proceedings Act, 1992
HEARD: December 22, 2016
PERELL, J.
REASONS FOR DECISION
1Pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6, Heather Drew brings a proposed class action against Walmart Canada Inc. and PNI Digital Media Inc. The parties have settled the litigation and, on consent, Ms. Drew seeks certification of her action as a class proceeding for settlement purposes.
[2]
Background
The background facts are that on May 5, 2015, Ms. Drew created an account at Walmart Canada Inc.’s online photocentre website, and to do so, she provided personal and financial information including her name, address, telephone number, and credit card information.
3Walmart is the well-known big-box store merchant of goods and services. Its head office is in the City of Toronto, and it operates more than 400 locations nationwide. Its website indicates that it serves more than 1.2 million customers every day.
4In 2014, Walmart retained PNI Digital Media, a company incorporated in British Columbia, to supply the software platform that is used by Walmart to provide online photo printing services for Walmart customers.
5Unfortunately, there was a data breach in the online system, and third parties had access to Walmart’s customers’ personal and financial information. Ms. Drew was advised about the data breach by email messages from Walmart on July 15, 2015 and October 30, 2015.
6After being advised of the data breach, Ms. Drew commenced this proposed class action. In her Statement of Claim, she advances claims of: (a) breach of contract; (b) negligence; (c) breach of fiduciary duty; (d) breach of confidence and violation of privacy; (e) instruction upon seclusion; (f) breach of statutory duty including but not limited to the Personal Information and Protection of Electronic Documents Act, S.O. 2000, c. 5; and (g) waiver of tort and claims for restitution, unjust enrichment, and disgorgement of profits.
7In her proposed class action, Ms. Drew seeks to be Representative Plaintiff for the following Class:
All persons resident or situated in Canada who used Wal-Mart Canada Corp.’s Photocentre website www.walmartphotocentre.ca (the “Website”) during the period from June 1, 2014 to July 10, 2015.
8Ms. Drew proposes that the following common issues be certified:
a. Did the members of the Class have a contract or contracts with one or both of the Defendants in respect of their use of the Website? If so, did one or both of the Defendants breach its or their obligations under the contract or contracts?
b. Did one or both of the Defendants owe a duty of care to the members of the Class to adequately collect, store and safeguard the personal and confidential information provided by members of the Class on the Website? If so, did one or both of the Defendants breach that duty of care?
c. Did one or both of the Defendants have a statutory duty to the members of the Class to adequately collect, store and safeguard the personal and confidential information provided by members of the Class on the Website? If so, did one or both of the Defendants breach that duty?
d. Did one or both of the Defendants have a duty to maintain the privacy of the members of the Class in respect of the information provided by members of the Class on the Website? If so, did one or both of the Defendants breach that duty?
9After Ms. Drew delivered her material for a contested certification, the parties engaged in settlement negotiations and they have reached a settlement. The main terms of the settlement are as follows:
a. The Defendants make no admission of liability.
b. The Defendants will pay for a one-year Equifax Complete Premier Plan, or reasonably equivalent credit monitoring plan, selected by the Defendants with approval of Class Counsel, for any Class Member who makes a valid claim within the Claim Period and will reimburse any Class Member who can demonstrate that he or she subscribed to a credit monitoring and/or identity theft monitoring program after being notified of the Data Security Incident for which he or she has not already been reimbursed by any other source, provided the claim for reimbursement is valid as determined by the Claims Administrator and made within the Claim Period.
c. The maximum cumulative total available under the Settlement Agreement for Credit Monitoring is $350,000.00 to be distributed in the order in which the Claim was made.
d. The Defendants will pay for valid claims made during the Claim Period for reimbursement made by Class Members for out-of-pocket losses, unreimbursed charges and time spent remedying issues fairly traceable to the Data Security Incident on the following basis:
i. any Class Member making a Claim must attest that he or she has not already been compensated, in part or in full, for any asserted loss, by insurance, an employer, a financial institution or in any other manner;
ii. the total amount eligible to be received by any one Class Member is a maximum of $5,000.00; and
iii. any Class Member making a claim for out-of-pocket losses or unreimbursed charges may receive $15/hr. for up to five hours of time spent remedying those losses or charges, if he or she can provide documented evidence of such losses; if he or she cannot provided documented evidence of such losses, the Class Member may receive $15/hr. for up to two hours of time spent remedying the losses or charges.
e. The maximum cumulative total available under the Settlement Agreement for the Recovery of Expenses is $400,000.00 to be distributed to Claimants on a pro rata basis if the maximum cumulative available total is reached.
f. Class Members can receive both credit monitoring and recovery of expenses, where eligible.
10Pursuant to s. 5(1) of the Class Proceedings Act, 1992, the court shall certify a proceeding as a class proceeding if: (1) the pleadings disclose a cause of action; (2) there is an identifiable class; (3) the claims or defences of the class members raise common issues of fact or law; (4) a class proceeding would be the preferable procedure; and (5) there is a representative plaintiff or defendant who would adequately represent the interests of the class without conflict of interest and there is a workable litigation plan.
11In the present case, I am satisfied that all of the criteria for certification have been satisfied.
[12]
Conclusion
Accordingly, I grant Ms. Drew’s motion.
Perell, J.
Released: December 22, 2016
CITATION: Drew v. Walmart Canada Inc., 2016 ONSC 8067
COURT FILE NO.: CV-15-532271-00CP
DATE: 20161222
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
heather drew
Plaintiff
- and -
WALMART CANADA INC. and PNI DIGITAL MEDIA INC.
Defendants
REASONS FOR DECISION
PERELL J.
Released: December 22, 2016