COURT FILE NO.: CV-18-00611365-00CP
DATE: 2020/12/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GLENN WINDER
Plaintiff
- and -
MARRIOTT INTERNATIONAL, INC., LUXURY HOTELS INTERNATIONAL OF CANADA, ULC, and STARWOOD CANADA ULC
Defendants
Michael G. Robb, Alex Dimson, Stefani Cuberovic, Ron Podolny, and Joel Rochon for the Plaintiff
Michael A. Eizenga, Ranjan K. Agarwal and Nina Butz for the Defendants
Proceeding under the Class Proceedings Act, 1992
HEARD: November 25, 2020
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] In this proceeding under the Class Proceedings Act, 1992,[^1] the Plaintiff Glenn Winder won a carriage motion to pursue a national class action against the Defendants Marriott International Inc., Luxury Hotels International of Canada, ULC, and Starwood Canada (collectively “Marriott”).
[2] Mr. Winder’s success in the carriage motion meant that there would not be a multiplicity of class actions against Marriott - in Ontario.
[3] His success in the Ontario carriage motion, however, did not address the multiplicity of class actions in other provinces. In addition to the Ontario national class action against Marriott, there were national class actions in British Columbia and Alberta against Marriott, a Québec class action, and a maritime regional class action in Nova Scotia.
[4] In these circumstances, Marriott simultaneously brought motions in British Columbia, Alberta, Ontario, Québec, and Nova Scotia to determine how many national and regional class actions it should be obliged to defend.
[5] A multijurisdictional joint hearing was scheduled for November 25, 2020 to be conducted as a remote virtual hearing that involved the participation of five superior courts in four different time zones.
[6] By the time the hearing convened, the parties had settled the matter of the multiplicity of class actions and they requested Orders that would stay all of the actions on terms with the exception of the Ontario action, which would also proceed on terms.
[7] These Reasons for Decision are to memorialize what was a remarkably successful collaboration of five superior courts from across the country that furthers access to justice and the fair and efficient administration of justice across the country.
B. Facts
[8] The defendants Marriott International, Inc. (Marriott International), Luxury Hotels International of Canada ULC (Luxury Hotels), and Starwood Canada ULC (together Marriott) are a global operator, franchisor, and licensor of hotels and resorts around the world.
[9] Marriott’s properties are owned and operated under various brand names, including Starwood Hotels. In September 2016, Marriott acquired the Starwood Hotels brand through its acquisition of Starwood Hotels & Resorts Worldwide, Inc. In Canada, Marriott owns or operates its properties through wholly-owned subsidiaries, including Luxury Hotels and Starwood Canada, from headquarters in Mississauga, Ontario.
[10] In November 2018, Marriott announced the Starwood guest reservation database security incident. Marriott’s investigation determined that there was unauthorized access to the database, which contained guest information relating to reservations at Starwood properties on or before September 10, 2018.
[11] In response to the Starwood Data Breach, sixteen proposed and overlapping class actions were started against various combinations of Marriott International, Luxury Hotels, and Starwood Canada across Canada. There were two actions in Alberta, six in B.C., five in Ontario, two in Québec, and one in Nova Scotia.
[12] Following consolidation, carriage motions, and consortium agreements, the sixteen overlapping proceedings were reduced to actions in each of Alberta, B.C., Ontario, Québec, and Nova Scotia.
a. In British Columbia, Koskie Minsky LLP was granted carriage of a national action. Justice Diane MacDonald is the case management judge.
b. In Alberta, Guardian Law Group LLP and Koskie Minsky LLP were granted carriage of a national action. Associate Chief Justice John D. Rooke is the case management judge.
c. In Ontario, Siskinds LLP was granted carriage. I am the case management judge.
d. In early 2020, Siskinds LLP and Rochon Genova, which sought carriage in the Québec Action, came to an agreement to jointly pursue a national class action in Ontario and to stay the Québec Action. Justice Sylvain Lussier is the case management judge.
e. In Nova Scotia, Koskie Minsky LLP sought carriage of a class of only Maritime residents. Justice Darlene Jamieson is the case management judge.
[13] In my carriage decision in Winder,[^2] I suggested that either Marriott or Class Counsel bring motions to settle how many actions should proceed.
[14] In the carriage decision in B.C., Justice MacDonald noted that not all of the overlapping actions would likely continue and that there was a question as to whether the British Columbia Action, the Alberta action or the Ontario Action would proceed.
[15] Marriott took up the suggestion of bringing motions in all five jurisdictions.
[16] At the invitation and with the consent of the parties, the case management judges in each of the actions agreed to adopt the Canadian Judicial Protocol for the Management of Multijurisdictional Class Actions and the Provision of Class Action Notice (the CBA Protocol) to deal with the five motions.
[17] Under the CBA Protocol, the parties agreed that the judges may speak with each other. Further, the parties and the judges agreed that a joint case management hearing be held.
[18] In June 2020, the Judges held a joint case management conference. We scheduled simultaneous hearings of Marriott’s motions for November 2020 to be conducted remotely and to be organized using technology that all the courts had adapted to in response to the Covid-19 pandemic.
[19] For the simultaneous motions in the five courts, Marriott moved to have only the Ontario action proceed. Mr. Winder also moved to have the other actions stayed.
[20] By the time the five-court motion was called for a hearing, the parties had settled, and they agreed subject to the necessary court approvals to have the Ontario action proceed on terms and to have the other actions stayed on terms.
[21] At the hearing, after hearing submissions from the parties, the judges of the five courts respectively indicated that subject to settling the form of the Orders, which needed to provide for reporting the progress of the Ontario class to the courts across the country, only the Ontario action would proceed.
[22] Proposed Class Counsel in the Ontario action have now provided me with the form of Order attached as Schedule “A” to these Reasons for Decision.
[23] The form of the Order is satisfactory, and I have signed it for issue and entry.
Perell, J.
Released: December 10, 2020
Court File No.: CV-18-00611365-00CP
ONTARIO SUPERIOR COURT OF JUSTICE
THE HONOURABLE JUSTICE PERELL
WEDNESDAY, THE 25th DAY OF NOVEMBER, 2020
BETWEEN:
GLENN WINDER
Plaintiff
- and -
MARRIOTT INTERNATIONAL, INC., LUXURY HOTELS INTERNATIONAL OF CANADA, ULC, and STARWOOD CANADA ULC
Defendants
Proceeding under the Class Proceedings Act, 1992
ORDER
THIS MOTION, made by the Defendants for an Order staying this proceeding was heard this day at 130 Queen St. W, Toronto, Ontario, by video conference.
ON READING the materials filed by the parties;
AND ON BEING ADVISED that the parties consent to this Order:
THIS COURT ORDERS that the Defendants’ motion to stay this proceeding is hereby dismissed, without costs.
THIS COURT ORDERS the Plaintiff to send a detailed written bi-annual report to the Case Management Judges in each of the following actions as to the progress of this proceeding, starting six months from the date of this Order: Birnbaum v Marriott International Inc. et al., Court File No. 1901-05987; Krygier v Marriott International Inc. et al., Court File No. S-190401; Poulin v Marriott International Inc. et al., Court File No. 500-06-000957-189; and Mann v Marriott International Inc. et al., Court File No. 484275 (collectively, the “Related Actions”).
THIS COURT ORDERS the Plaintiff to send a copy of any order or direction in this proceeding to the Case Management Judges in the Related Actions.
The Honourable Justice Paul Perell
COURT FILE NO.: CV-18-00611365-00CP
DATE: 2020/12/10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GLENN WINDER
Plaintiff
- and -
MARRIOTT INTERNATIONAL, INC., LUXURY HOTELS INTERNATIONAL OF CANADA, ULC, and STARWOOD CANADA ULC
Defendants
REASONS FOR DECISION
PERELL J.
Released: December 10, 2020
[^1]: S.O. 1992, c. 6.
[^2]: Winder v. Marriott International Inc., 2019 ONSC 5766