COURT FILE NO.: CV-19-00625030-00CP
DATE: 20210324
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RINA DEL GIUDICE and DANIEL WOOD
Plaintiffs
- and -
PAIGE A. THOMPSON, CAPITAL ONE FINANCIAL CORPORATION, CAPITAL ONE BANK (CANADA BRANCH), CAPITAL ONE (SERVICES) CANADA INC., CAPITAL ONE, N.A., CAPITAL ONE BANK (USA), N.A., GITHUB, INC., AMAZON WEB SERVICES INC., AND AMAZON WEB SERVICES (CANADA) INC.
Defendants
Counsel:
John A. Campion, R. Douglas Elliott, and Glyn Hotz for the Plaintiffs
Sarah Armstrong. Alex Cameron, Vera Toppings and Pavel Sergeyev for the Defendants Capital One Financial Corporation, Capital One Bank (Canada Branch), Capital One (Services) Canada Inc., Capital One, N.A., Capital One Bank (USA), N.A.
Scott Kugler and Brent Arnold for the Defendants Amazon Web Services Inc., and Amazon Web Services (Canada) Inc.
Lauren Tomasich, and Lauren Harper for the Defendant GitHub Inc.
Proceeding under the Class Proceedings Act, 1992
HEARD: March 23, 2021
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] In this proposed class action under the Class Proceedings Act, 1992,[^1] the Plaintiffs Rina Del Giudice and Daniel Wood allege that on March 22 or 23, 2019, the Defendant Paige Thompson, who was then a computer programmer at Amazon, hacked the data base of the Defendants Capital One Financial Corporation, Capital One Bank (Canada Branch), Capital One (Services) Canada Inc., Capital One, N.A., Capital One Bank (USA), N.A. (collectively “Capital One”).
[2] The Capital One data was stored on the servers of the Defendants Amazon Web Services Inc., and Amazon Web Services (Canada) Inc. (collectively “Amazon”). Ms. Thompson allegedly misappropriated the data. She used it to mine for cryptocurrency. She posted unencrypted data on the Defendant GitHub Inc.’s website. GitHub is a subsidiary of Microsoft, and its website is a forum for software developers to share information.
[3] The Plaintiffs bring a motion for an injunction. In particular, the Plaintiffs seek:
(a) an order enjoining any and all communications from the Capital One Defendants to the Putative class members without an order of this court, or consent of Plaintiffs’ Counsel;
(b) a direction that any communication to the Putative class members, whether customers of the Capital One Defendants or not, include an announcement that a class proceeding has been commenced and a direction to the Website;
(c) an order directing that any communication from the Capital One Defendants to the 51,000 Putative class members be through the Canada Bank;
(d) an order that a letter in the form of Schedule “D” be used by the Canada Bank to communicate with any of the 51,000 who were never customers of the Canada Bank or the other Capital One Defendants;
(e) an order directing that any communication to customers of Capital One be a modified version of the form of communication contained in Schedule “D”; and
(f) an order dispensing with service on defendant Paige A. Thompson.
[4] For the reasons that follow, the Plaintiffs’ motion is dismissed.
B. Facts
[5] As a consequence of Ms. Thompson’s data breach, it is alleged that the personal and confidential information of 90 million customers of Capital One was compromised. It was estimated that six million Canadian Capital One customers were affected.
[6] On July 29, 2019, Capital One reported the data breach to the public, and it disseminated a notice to its customers.
[7] Capital One published the following notice:
On July 19, 2019, we determined there was an unauthorized access by an outside individual who obtained certain types of personal information relating to people who had applied for our credit card products and to Capital One credit card customers.
We immediately fixed the configuration vulnerability that this individual exploited and promptly began working with Unites States federal law enforcement.
The FBI has arrested the person responsible.
Based on our analysis to date, we believe it is unlikely that the information was used for fraud or disseminated by this individual. However, we will continue to investigate.
Based on our analysis to date, this event affected approximately 100 million individuals in the United States and approximately 6 million in Canada. The largest category of information was information on consumers and small businesses as of the time they applied for one of our credit card products from 2005 through early 2019. This information included personal information Capital One routinely collects at the time it receives credit card applications, including, names, addresses, zip codes/ postal codes/ phone numbers, email addresses, dates of birth, and income.
Beyond the credit card application data, the individual also obtained portions of credit card customer data, including:
• Customer status data, e.g. credit scores, credit limits, balances, payment history, contact information
• Fragments of transaction data from a total of 23 days during 2016, 2017 and 2018
No log in credentials were compromised.
No bank account numbers or Social Security numbers were compromised other than:
• About 140,000 Social Security numbers of our small business credit card customers
• About 80,000 linked bank account numbers of our secured credit card customers
For our Canadian credit card customers, approximately 1 million Social Insurance Numbers were compromised in this incident.
We will notify affected individuals through a variety of channels. We will make free credit monitoring and identity theft insurance available to everyone affected.
Safeguarding our applicants and customers’ information is essential to our mission and our role as a financial institution. We have invested heavily in cybersecurity and will continue to do so. We will incorporate the learnings from this incident to further strengthen our cyber defences.
The investigation is ongoing, and analysis is subject to change. As we will learn more, we will update this website and provide additional information.
[8] On August 6, 2019, Rina Del Giudice commenced this proposed class action. Subsequently Daniel Wood joined Ms. Del Giudice as co-Plaintiff.
[9] Proposed Class Counsel in the Del Giudice Action are a consortium of: (a) Cambridge LLP; (b) Gardiner Roberts LLP; (c) Hotz Lawyers; and (d) Scher Law Professional Corporation, which brand themselves as PDBL – Privacy and Data Breach Law Group.
[10] On April 30, 2020, Ms. Del Giudice’s and Mr. Wood’s lawyers were granted carriage of the proposed class action.[^2]
[11] On February 24, 2021, counsel for Capital One, advised putative Class Counsel that Capital One had recently discovered that Ms. Thompson had accessed data pertaining to approximately 51,000 Canadians.
[12] Further, counsel for Capital One advised putative Class Counsel that Capital One would be sending a notice to this group of 51,000 in the manner that it had notified the original group in 2019. As before, Capital One would offer free credit monitoring and identity theft insurance to everyone affected.
[13] Putative Class Counsel responded that the notice was improper and that any notice to the class could be made only by Class Counsel at Capital One’s expense. Putative Class Counsel’s position was that notice to the class members could only be given with its consent or pursuant to court permission and supervision.
[14] When counsel for Capital One did not agree, the Plaintiffs brought a motion for the above injunctive relief.
[15] There were more exchanges between the lawyers. Capital One was adamant that it was going forward with a notice. The one concession that Capital One made was that it offered to include the following statement in the notice:
Please be advised that proposed class actions have been commenced relating to the cybersecurity incident announced by Capital One on July 29, 2019. None of these actions has been certified by the Court as a class action.
[16] The version of the notice that Capital One proposes to release to the group of 51,000 is similar but not identical to the notice released in July 2019 to the group of six million. The notice states:
Dear [ ]
On July 29, 2019, Capital One announced it had been impacted by a cybersecurity incident. Based on our ongoing investigation, we have reason to believe that your personal information may have been obtained as part of that incident. We’re deeply sorry for the understandable worry this may cause and are committed to making things right.
We want to let you know what steps we’re taking to protect your information. We’re providing you with 2 years of free credit monitoring and identify theft insurance from TransUnion. You’ll find out more information about this service, and how to enrol, in this letter.
About the incident.
On July 19, 2019, we determined there was an unauthorized access to our systems by an outside individual. This person obtained certain personal information relating to Capital One credit card customers and people who had applied for our credit card products. Based on our investigation, this occurred on March 22 and 23, 2019.
We immediately fixed the vulnerability that this individual exploited and promptly began working with United States federal law enforcement. The person responsible was arrested for her conduct on July 29, 2019.
In the initial investigation that we conducted with an external third-party expert to determine what information was accessed by the unauthorized individual, you may not have been identified as being affected by the incident.
However, we recently used more advanced tools to re-examine the files relating to the incident. Based on our analysis, we determined that some of your personal information was obtained by the outside individual.
Even though we do not believe that the information was used for fraud or was disseminated by this individual we want to outline some additional steps you can take to protect yourself from fraud.
Personal information impacted
Our investigation has determined that the person responsible may have gained access to the following information of yours:
• Personal information, including name, address data, postal code, phone number, occupation, employer and date of birth
• Customer status data, including credit score, credit limit, account balance, payment history and contact information
Based on our investigation to date, your Social Insurance Number was not exposed/we believe that your Social Insurance Number was exposed as a result of this incident
No credit card numbers, PIN codes or login credentials were compromised as part of this incident.
We’re taking a number of steps for your protection
Safeguarding your information is essential to us, and we’ll continue to invest heavily in cybersecurity. We immediately took action to fix the vulnerability which led to this incident and have engaged cybersecurity experts to assist us in our investigation. We’ve also put in place additional monitoring to help ensure similar incidents will not occur in the future. We’ll incorporate what we learn from this incident to further strengthen our cyber defences.
We’re also providing you with 2 years of free credit monitoring and identify theft insurance with TransUnion myTrueIdentity. Follow these simple steps to enrol:
• Visit http://www.mytrueidentity.ca
• When prompted, enter the activation code [ ]
• Complete the enrollment process and verify your identity/
Please ensure that you redeem your activation code before July 31, 2021 to take advantage of the service.
Should you have any questions regarding the TransUnion or myTrueIdentity solution or have difficulty enrolling, please contact TransUnion at 1-888-228-4939, Monday to Friday, 8:30 a.m. to 5 p.m. ET (excluding holidays).
Additional steps you can take to protect your information
While our investigation has not revealed the use of your personal information for fraudulent purposes, we encourage you to take the following steps to protect yourself against potential misuse of your information:
• You can order a copy of your credit report from both of the major credit reporting agencies in Canada – Equifax and TransUnion – free of charge. Once you receive your reports, review them for suspicious activity, and notify the credit agencies if any information is incorrect.
• You can also request that each of the credit reporting agencies place a fraud alert on your credit file. These alerts will stay for 6 years.
• Keep an eye out for phishing emails or other fraudulent communications. We will not call or text customers asking for personal information regarding this cybersecurity incident. Visit http://www.capitalone.ca/help/fraud-protection for tips on how to spot fraudulent communications.
• Monitor your accounts for unusual or suspicious activity that you don’t recognize. Contact your bank or financial institution immediately if you spot any unusual activity.
We’re constantly monitoring our systems to look out for any unusual activity and to protect our customers from unauthorized actions.
Visit http://www.capitalone.ca/facts2019 for more information on these tips and tools to help protect yourself from fraud and identity theft.
Pleased by advised that proposed class actions have been commenced relating to the cybersecurity incident announced by Capital One on July 29, 2019. None of these actions has been certified by the Court as a class action.
How to get in touch with us
Please visit our dedicated web page at http://www.capitalone.ca/facts2019 for the most up-to-date information on this cybersecurity incident. We’ll continue to update this page as our investigation continues.
If you have further questions, please don’t hesitate to call us at 1-833-727-1234. We have customer service representatives available 24/7.
Sincerely,
C. The Plaintiffs’ Submissions
[17] In a submission that goes very deep into the merits of this proposed class action, the Plaintiffs’ argument is that the court as the protector of vulnerable putative class members should intervene.
[18] The Plaintiffs submit that in the circumstances of the immediate case, the court should and must supervise communications from the defendants to the putative class members, who have been victimized by a traumatic intrusion into their personal financial security, and who cannot trust to be protected and informed by Capital One.
[19] In a submission that on the facts goes beyond the data breach incident disclosed in July 2019, the Plaintiffs submit that the class members’ personal data has been mined by the Canadian corporate defendants in a campaign for their American corporate parents that began in 2005. The Plaintiffs submit that the class members’ personal information data was exported to the United States, where it was inadequately protected and released to be misused.
[20] The Plaintiffs submit that the life savings or financial security of 6,051,000 Canadian citizens has been imperiled. The Plaintiffs submit that the 51,000 additional class members, many of whom are old retirees (because the data mining is decades old), will be alarmed to the core of their being by a notice suddenly arriving to tell them that they must act to guard themselves against fraudsters. The Plaintiffs submit that the class can scarcely be expected to be protected by the exploitive Capital One. Class Counsel was duty bound to get the court to respond. The Plaintiffs submit that the 51,000 Canadians will be surprised and disturbed by what for many of them was a long-forgotten interaction with Capital One. The Plaintiffs submit that the court should intervene to ensure that the putative class members’ questions, concerns, fears, and misunderstandings are adequately and fairly addressed.
[21] The Plaintiffs submit that the court as the protector of the vulnerable putative class members should understand that Capital One is a bank, and that as a bank, it had a fiduciary duty to the class. The Plaintiffs submit that Capital One breached its fiduciary duties to the class members and that it breached its obligations under Personal Information Protection and Electronic Documents Act (“PIPEDA”). Once again, the Plaintiffs submit that the class can scarcely be expected to be protected by the exploitive Capital One. Class Counsel was duty bound to get the court to respond.
[22] In an ironic submission, the Plaintiffs submit that their motion to protect the putative Class Members has already been a success and they actually do not need injunctive relief because by merely bringing the motion, they have arrested the notice process and have called on the court to review the notice to the putative class members. The Plaintiffs submit that the court should complete the review process by considering the Plaintiffs’ more expansive and informative draft notice to the class.
D. The Court’s Jurisdiction to Regulate Communications with Class Members
[23] In the immediate case, there is an unarticulated and false premise to the Plaintiffs’ argument about why the court should intervene and enjoin or direct or supervise Capital One’s communication with the putative class members.
[24] The unarticulated premise is that the court is the protector of the class; i.e., the court has some sort of fiduciary or quasi-fiduciary responsibility to the class. This is a false premise.
[25] A class proceeding is an adversarial process that requires an impartial evenhanded judge that does not take sides. It is Class Counsel and not the court that may have fiduciary responsibilities to the class. It is for Class Counsel to be the guardian and avenging angel. The court’s role, however, is to judge not be a partisan.
[26] The court’s concern with respect to communications to the class is to ensure that the class action procedure is fair to all the litigants. Save on settlement approval hearings and fee approval hearings, where the adversarial process pauses, the court’s role is not to protect the class.
[27] In the immediate case, it is for Class Counsel to ensure the court intervention is required. In the immediate case, the Plaintiffs’ argument essentially was that court should intervene because the defendant is a wrongdoer and the court must protect the victimized class. The obvious problem with that argument, however, is that in the immediate case, the Defendants have denied liability and they are not to be assumed to be guilty with respect to their relationship with the class, nor is it to be assumed that each and every member of the class is vulnerable and harmed.
[28] In the immediate case, a merits hearing, if any, will be many months if not years away notwithstanding the Plaintiffs’ announcement at the hearing that based on the admissions already made, they will be moving for a summary judgment. The court cannot on an interlocutory motion about communications with the class prejudge and favour the Plaintiffs’ case. The Plaintiffs may ultimately succeed but it is far too early to say.
[29] The Plaintiffs are correct that the court has the jurisdiction to intervene and to supervise what notices are given to class members, but the Plaintiffs are incorrect in asserting that the court has a duty to intervene. The court needs to be persuaded that there is a need for it to intervene.
[30] When then should the court exercise its jurisdiction to supervise communications with the class?
[31] Under the Class Proceedings Act, 1992, there are several “official” notices that are specified and regulated by the statute. The three most important official notices are: (a) the notice of certification, which regulates the rights of class members to opt-out of the class proceedings; (b) the notice of the settlement approval hearing, which regulates the class members’ rights to support or oppose the settlement; and (c) the notice of settlement approval, which regulates the class members’ rights to participate in the settlement.
[32] The case at bar does not involve an official notice.
[33] Although the lawyers for the parties have obviously been involved, the case at bar does not involve communications between lawyers and putative class members. Communications between a lawyer and clients or potential clients, and between a lawyer and a represented or unrepresented person are also regulated by the Law Society of Ontario under the Rules of Professional Conduct. For present purposes, I need not say anything more about the Rules of Professional Conduct.[^3]
[34] The case at bar involves an unofficial notice given by a defendant to putative class members, who are the defendant’s customers or potential customers.
[35] A defendant in a proposed class proceeding may have an ongoing relationship with the putative class members, who may be the defendant’s customers, clients, investors, shareholders, suppliers, employees, franchisees, taxpayers, etc. Depending upon the circumstances of the particular case, the defendant may have legitimate and proper reasons to communicate with the putative class members.
[36] In addressing the matter of communications between a defendant and a putative class member, the power of the court under s. 12 of the Class Proceedings Act, 1992 to make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination should be sparingly employed so as to not interfere with what otherwise would be the normal rights of putative class members to conduct their affairs as they see fit, to protect their own interests, and to seek their own advice without interference by the court.[^4]
[37] As a matter of case law, before the certification of a proposed class action, a defendant is entitled to communicate with putative class members as if they were non-parties, with the exception that the defendant may not communicate in a manner that would visit an injustice on the putative class members or would otherwise undermine the integrity of the class proceeding by disparaging the plaintiff or by intimidating the putative class members to not support the class proceeding.[^5]
[38] In addition to the court’s power under s. 12 of the Class Proceedings Act, 1992, the court has an inherent power to control its own process, and the court may harness this power to supervise the conduct of a proposed class action in its pre-certification stages to make orders to protect putative class members.[^6] Both before and after certification, if there is evidence of inappropriate behaviour, the court can exercise its discretion and impose conditions on communications between the parties and putative class members to ensure the integrity of the class proceeding.[^7]
[39] Not every communication to members of the class needs to receive court approval.[^8] The parties are free to communicate to the public about a class proceeding, and a press release that provides information to the media that does not evade or undermine the formal notice requirements is not a notice regulated by the Class Proceedings Act, 1992.[^9]
[40] An order restricting communication by the defendant to class members is extraordinary;[^10] however, if communication by a defendant to a class member during the opt-out period is inaccurate, intimidating, or coercive, or is made for some other improper purpose aimed at undermining the process the court will, on the motion of a party or class member, intervene to ensure the fair determination of the class proceeding.[^11] When there is sufficient evidence of inappropriate behaviour or the need to ensure the integrity of the class proceeding, the court can impose conditions on communications between the parties and putative class members or class members.[^12]
[41] An order restricting communication by the defendant during the opt-out period should only be granted if it is necessary to prevent a real and substantial risk to the fair determination of a class proceeding, because reasonably available alternative measures will not prevent the risk.[^13]
[42] Where the certification of class proceedings is pending and the defendant is communicating with class members to negotiate settlements, the court may direct that before entering into any settlement, the defendant provide notice of the commencement of and the nature of the class proceeding.[^14] The notice may contain a proviso that the class member has a fixed time period to obtain legal advice about the class action and to resile from the settlement.[^15] A communication that could influence a putative class member settling or releasing the defendant must inform the putative class member about the existence of a class action or a potential class action.[^16]
[43] I agree with what Justice Nordheimer, as he then was, said two decades ago in Pearson v. Inco Ltd.:[^17]
- [M]embers of the proposed class ought not to be treated any differently [from how] non-parties to any other action would be treated subject to one exception. The exception is where either the plaintiff or the defendant purports to communicate, or otherwise deal, with members of the proposed class in a fashion, and to a degree, that would visit an injustice on those persons or would otherwise undermine the integrity of the class proceeding itself. Intimidating conduct such as occurred in Vitelli v. Villa Giardino Homes Ltd., supra, or seeking to have persons settle their claims without adequate information as to their rights as might have resulted in Lewis v. Shell Canada Ltd., supra, are examples of the application of the exception. The exception, however, should not be made the rule or else the court will inevitably be drawn into a painstaking examination of all pre-trial activity undertaken by the parties -- a clearly undesirable result. To a very large degree, members of a proposed class are like anyone else. They have an obligation to protect their own interests and, in that regard, to seek their own advice. At the same time, they have the right to conduct their affairs as they see fit without interference by this court.
[44] In the immediate case, there is no reason for the court to intervene in Capital One’s communication with the putative class members. The proposed notice does not affect the integrity of the proposed class proceedings and the proposed notice does not in any way compromise the putative class members’ rights to participate or not participate in the class proceedings. The proposed notice does not threaten the integrity of the class action procedure.
[45] The proposed notice does not disparage the class actions that exist against Capital One across Canada. The proposed notice just mentions the existence of the class proceeding. For present purposes, I need not decide whether the defendant ought to have included a reference to the class proceedings. In the immediate case, there is no reason to move from what is already the case.
[46] Putative Class Counsel submits that Capital One is providing notice to the class members because it must do so to comply with Personal Information Protection and Electronic Documents Act (“PIPEDA”)[^18] and this circumstance justifies court intervention because Capital One is not complying with PIPEDA.
[47] Generally speaking, the regulation of PIPEDA is a matter for the Privacy Commissioner and the Federal Court and not for this court. It may or may not be the case that Capital One is giving notice because of PIPEDA, but in the immediate case that circumstance does not change the situation of the immediate case, where there is no reason for the court for the purposes of the class proceeding to intervene in what may or may not be required to comply with PIPEDA.
[48] In the immediate case, the Plaintiffs have not pointed to anything in the notice that would require or justify the court in interfering with the Defendants’ freedom of speech, even if it is commercial speech. It is not the court’s role to be a compliance officer for the Privacy Commissioner.
[49] In short, the onus being on them, the Plaintiffs have not persuaded me that I should intervene in the immediate case. In these circumstances, I shall not review or comment about the notice drafted by Class Counsel.
E. Conclusion
[50] For the above reasons, the Plaintiffs’ motion is dismissed.
[51] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Capital One’s submissions within twenty days of the release of these Reasons for Decision, followed by the Plaintiffs’ submissions within a further twenty days.
F. Postface
[52] Not as a matter of judicial decree and more as a matter of recommendation, I add this postface to comment how, in my opinion, communications with class members might be handled in the future to avoid what happened in the immediate case.
[53] In this regard, I suggest that once a class action has commenced:
a. If the defendant wishes to communicate with class members and the communication is: (a) out of the normal course of the defendant’s business or affairs; and (b) on a topic that is substantively significant to the class action, then - not as a matter of courtesy - but as a means to avoid problems and objections, the defendant’s lawyer should ask Class Counsel if there are any problems or objections to the notice.
b. Class Counsel should respond with its objections, if any. Class Counsel should appreciate that for unofficial notices from the defendant, the court has a high threshold for exercising its jurisdiction to supervise the communication.
c. If Class Counsel has comments, the defendant’s lawyer should consider Class Counsel’s comments and objections seriously. For example, Class Counsel may have advice as to how not to alarm the class members by the details of the notice. In a given case, it is even conceivable that Class Counsel may not wish to discourage the Class Members from obtaining such benefits as the defendant may be offering.
d. If after considering Class Counsel’s comments, there remains a dispute between the parties about the notice, then the defendant’s counsel should consider inviting Class Counsel to schedule a case management conference to determine whether a motion is actually warranted to address the propriety of the notice.
e. If after considering Class Counsel’s comments, there remains a dispute between the parties and the defendant’s counsel decides not to suggest a case management conference, then the defendant should issue its communication. The defendant, however, should understand that proceeding in this way runs the risk that the plaintiff will move for an order that a corrective notice be issued likely at the expense and possible embarrassment of the defendant.
f. In any event, neither side should use the occasion of the notice opportunistically or tactically.
g. If there is a motion, in deciding that motion, the court’s role is purely adjudicative. The court will not be deciding the merits of the case and will be making a decision in the context of the adversary system. It is not the court’s role to prejudge the merits of either side’s case.
Perell, J.
Released: March 24, 2021
COURT FILE NO.: CV-19-00625030-00CP
DATE: 20210324
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RINA DEL GIUDICE and DANIEL WOOD
Plaintiffs
- and -
PAIGE A. THOMPSON, CAPITAL ONE FINANCIAL CORPORATION, CAPITAL ONE BANK (CANADA BRANCH), CAPITAL ONE (SERVICES) CANADA INC., CAPITAL ONE, N.A., CAPITAL ONE BANK (USA), N.A., GITHUB, INC., AMAZON WEB SERVICES INC., AND AMAZON WEB SERVICES (CANADA) INC.
Defendants
REASONS FOR DECISION
PERELL J.
Released: March 24, 2021
[^1]: S.O. 1992, c. 6. [^2]: Del Giudice v. Thompson, 2020 ONSC 2676. [^3]: See de Muelenaere v. Great Gulf Homes Limited, 2015 ONSC 7442; Lundy v. Via Rail Canada Inc., 2012 ONSC 4152. [^4]: Pearson v. Inco. (2001), 2001 CanLII 28084 (ON SC), 57 O.R. (3d) 278 (S.C.J.), leave to appeal refused [2002] O.J. No. 2134 (Div. Ct.). [^5]: Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 at para. 38 (S.C.J.); Pearson v. Inco Ltd., 2001 CanLII 28084 (ON SC), [2001] O.J. No. 4877 at para. 18 (S.C.J.), leave to appeal ref’d [2002] O.J. No. 2134 (Div. Ct.). [^6]: de Muelenaere v. Great Gulf Homes Limited, 2015 ONSC 7442; Fantl v. Transamerica Life Canada, 2008 CanLII 17304 (ON SC), [2008] O.J. No. 1536 at paras. 57-59 (S.C.J.), leave to appeal granted [2008] O.J. No. 2593 (Div. Ct.), affd. [2008] O.J. No. 4298 (Div. Ct.), affd. 2009 ONCA 377; Fenn v. Ontario, 2004 CanLII 28170 (ON SC), [2004] O.J. No. 2736 at paras. 13-17 (S.C.J.). See also: Coleman v. Bayer Inc., [2004] O.J. No. 1974 at paras. 30-39 (S.C.J.); Burnett Estate v. St. Jude Medical Inc., [2008] B.C.J. No. 192 at paras. 32-35 (S.C.); Logan v. Canada (Minister of Health), 2004 CanLII 184 (ON CA), [2004] O.J. No. 2769 (C.A.). [^7]: 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2004), 2004 CanLII 13951 (ON SC), 71 O.R. (3d) 664 at para. 25 (S.C.J.); Ward-Price v. Mariners Haven Inc., (2004), 71 O.R. (3d) 664; Pearson v. Inco Ltd., 2001 CanLII 28084 (ON SC), [2001] O.J. No. 4877 at para. 18 (S.C.J.), leave to appeal ref’d [2002] O.J. No. 2134 (Div. Ct.); Lewis v. Shell Canada Ltd. (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 (S.C.J.); Atkinson v. Ault Foods Ltd., [1997] O.J. No. 4676 (Gen. Div.). [^8]: 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd.; Ward-Price v. Mariners Haven Inc. (2004), 2004 CanLII 13951 (ON SC), 71 O.R. (3d) 664 at para. 25 (S.C.J.). [^9]: Bywater v. Toronto Transit Commission (1999), 1999 CanLII 14779 (ON SC), 43 O.R. (3d) 367 (Gen. Div.). [^10]: 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279; Smith v. National Money Mart Co., 2007 CanLII 13369 (ON SC), [2007] O.J. No. 1507 (S.C.J.); 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada, (2004), 2004 CanLII 13951 (ON SC), 71 O.R. (3d) 664 (S.C.J.). [^11]: Smith v. National Money Mart Co., 2007 CanLII 13369 (ON SC), [2007] O.J. No. 1507 (S.C.J.); 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada; Bartolome v. Mr. Payday Easy Loans Inc., 2008 BCSC 132, [2008] B.C.J. No. 167 at paras. 63-74 (S.C.). [^12]: David v. Loblaw, 2018 ONSC 198; ALS Society of Essex County. Windsor (City), 2016 ONSC 676; de Muelenaere v. Great Gulf Homes Limited, 2015 ONSC 7442; Durling v. Sunrise Energy Group Inc. , 2012 ONSC 6328; Lundy v. Via Rail Canada Inc., 2012 ONSC 4152; Vitelli v. Villa Giardino Homes Ltd. (2001), 2001 CanLII 28067 (ON SC), 54 O.R. (3d) 334 at para. 38 (S.C.J.); Pearson v. Inco Ltd., 2001 CanLII 28084 (ON SC), [2001] O.J. No. 4877 at para. 18 (Div. Ct..); Lewis v. Shell Canada Ltd. (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 (S.C.J.). [^13]: 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279; Smith v. National Money Mart Co., 2007 CanLII 13369 (ON SC), [2007] O.J. No. 1507 (S.C.J.). [^14]: Lewis v. Shell Canada Ltd. (2000), 2000 CanLII 22379 (ON SC), 48 O.R. (3d) 612 (S.C.J.). [^15]: White v. IKO Industries Ltd., 2010 ONSC 3920, [2010] O.J. No. 2954 (S.C.J.). [^16]: David v. Loblaw, 2018 ONSC 198. [^17]: Pearson v. Inco Ltd., 2001 CanLII 28084 (ON SC), [2001] O.J. No. 4877 at para. 18 (S.C.J.), leave to appeal ref’d [2002] O.J. No. 2134 (Div. Ct.). [^18]: S.C. 2000, c.5, ss. 10.1(1)-(3).