COURT FILE NO.: CV-19-00625030-00CP
DATE: 20210422
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
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.
Proceeding under the Class Proceedings Act, 1992
HEARD: In writing
PERELL, J.
REASONS FOR DECISION - COSTS
[1] This is a costs decision with respect to two motions.
[2] 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”).
[3] The putative Class is seeking compensation of $0.25 trillion.
[4] The Capital One Defendants claim costs for two motions; namely a refusals motion and motion for an interlocutory injunction; visualize:
a. In March 2021, the Plaintiffs brought a motion for an injunction seeking to enjoin a proposed communication from the Capital One Defendants to the Putative Class Members, who are or were their customers.
b. The Capital One Defendants resisted the motion, and they relied on a four-paragraph affidavit from Carolyn Flanagan, who is an associate lawyer at Fasken Martineau DuMoulin, LLP, the lawyers for Capital One.
c. Ms. Flannigan was cross-examined at length on March 10, 2021. The transcript is 153 pages of 388 questions and an insufferable number of vile exchanges between counsel. Ms. Flannigan answered 311 questions. She refused to answer 77 questions.
d. The Plaintiffs brought a refusals motion. The motion was dismissed in its entirety.[^2]
e. Subsequently, the Plaintiffs’ motion for an injunction was dismissed in its entirety.[^3]
[5] Capital One requests costs of $135,000, all inclusive, on a substantial indemnity basis or in the alternative costs of $112,500, all inclusive, on a partial indemnity basis.
[6] Notwithstanding that they lost both motions, unabashedly, the Plaintiffs submit that they should be awarded costs of $15,000 because they secured their objective of having the court review the notice that Capital One had intended to distribute to putative Class Members.
[7] In unabashedly asking for costs, the Plaintiffs also take credit for being the catalyst for my obiter postface comments about best practices in matters of giving notice to putative Class Members.
[8] Notwithstanding the courage of their convictions about claiming costs, I understand that the Plaintiffs are not proud of what occurred during Ms. Flannigan’s cross-examination.
[9] In any event, there is no basis for the Plaintiffs to assert any sort of success on either motion. The Plaintiffs lost both motions. Capital One is entitled to its costs, which I award on a partial indemnity basis.
[10] When the dust settles, all that occurred in the immediate case is that the Plaintiffs brought two motions that failed in a proposed class action where the Plaintiffs claim $0.25 trillion in compensation.
[11] The Plaintiffs must pay the normal price of failure in high stakes litigation.
[12] The Plaintiffs’ failure was of the abysmal sort. The Plaintiffs’ motions were ill-advised and meritless, and the Plaintiffs took unreasonable, overreaching, and legally unavailable positions.
[13] That said, it is an adversarial process, and the litigation cost of an abysmal failure is to waste one’s own legal resources and to also to have to pay spoils to the winner.
[14] The Plaintiffs did not treat their own motions as trivial matters, and they would have reasonably expected that Capital One would respond in kind. It should be no surprise that in these circumstances, the two motions would expose the Plaintiffs to a non-trivial award of costs.
[15] The Plaintiffs did not dispute Capital One’s Bill of Costs. The Plaintiffs did not submit a Bill of Costs of their own, and it was bold of them to claim success and to claim costs.
[16] Having reviewed the Defendants’ bill of costs, I award Capital One costs on a partial indemnity basis of $112,500, all inclusive, payable within sixty days.
Perell, J.
Released: April 22, 2021
COURT FILE NO.: CV-19-00625030-00CP
DATE: 20210422
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: April 22, 2021
[^1]: S.O. 1992, c. 6.
[^2]: Del Giudice v. Thompson, 2021 ONSC 2015
[^3]: Del Giudice v. Thompson, 2021 ONSC 2206