Court File and Parties
COURT FILE NO.: CV-19-00625030-00CP
DATE: 20210520
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:
Hugh Scher, John A. Campion, R. Douglas Elliott, Glyn Hotz, Darrel N. Hotz, and Eli Bordman (Student-at-Law) for the Plaintiffs
Deborah Glendinning, Lauren Tomasich, Lauren Harper and Elie Farkas for the Defendant GitHub Inc.
Sarah Armstrong, and Vera Toppings 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 J. Arnold for the Defendants Amazon Web Services Inc., and Amazon Web Services (Canada) Inc.
Proceeding under the Class Proceedings Act, 1992
HEARD: May 20, 2021
PERELL, J.
ENDORSEMENT
[1] In this proposed class action, it is alleged 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”).
[3] 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 an American corporation and a subsidiary of Microsoft, and its website is a forum for software developers to share information.
[4] Pursuant to s. 29 of the Class Proceedings Act, 1992[^1], the Plaintiffs, Rina Del Giudice and Daniel Wood, seek court approval of a settlement with Github as memorialized in a Settlement Agreement, dated May 18, 2021.
[5] At the commencement of the hearing today, I advised the parties that I was not inclined to approve the settlement as proposed. I asked the parties whether they would like to withdraw the motion for an opportunity to continue negotiations for a settlement that I might approve.
[6] I advised the parties that I was not inclined to approve the proposed settlement for two reasons. The first reason was jurisdictional, and the second reason was based on the substantive merits of the settlement agreement and whether it met the test for approval.
[7] The jurisdictional reason was that the court was being asked to make a binding ruling that it does not have jurisdiction based on the consent of the parties; however, it is not for the parties to confer or negate the court’s jurisdiction. The court cannot rule on its own jurisdiction based on an agreement of the parties as to what is the court’s jurisdiction.
[8] The scope of the court’s jurisdiction must be decided on its merits. I cannot make a ruling on the court’s jurisdiction on consent especially in as important a matter as the case at bar in which the Plaintiffs plead numerous privacy causes of action.
[9] What I could do is to treat Github’s jurisdiction motion as moot because of an agreement to discontinue as against Github without costs and then consider whether to approve the discontinuance. This approach however is not the basis of the Settlement Agreement.
[10] The second reason, I was not inclined to approve the settlement is that if I were to treat the settlement for what it essentially is (a discontinuance to let Github out of the action because the court might not have jurisdiction and the Plaintiffs were confronted with other litigation risks), the evidence and the argument of the parties rather supported not approving the settlement.
[11] In other words, the evidence and argument supported actually addressing Github’s jurisdiction motion on its merits and if the court did have jurisdiction, addressing whether it was in the best interests of the putative class members to irretrievably let Github out of the action at this juncture.
[12] Having heard my comments, the parties asked that the motion be adjourned. I am accordingly adjourning the motion sine die.
Perell, J. -Released: May 20, 2021
COURT FILE NO.: CV-19-00625030-00CP
DATE: 20210520
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
ENDORSEMENT
PERELL J.
Released: May 20, 2021
[^1]: S.O. 1992, c. 6.