Court File and Parties

COURT FILE NO.: CV-19-00625030-00CP DATE: 2021/02/04

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, Jonathan Nehmetallah and R. Douglas Elliott for the Plaintiffs

HEARD: In writing

REASONS FOR DECISION

PERELL, J.

[1] Pursuant to the Class Proceedings Act, 1992,[^1] this is a proposed invasion of privacy action. In this action, this is a motion for an order for substitutional service on Paige A. Thompson, a defendant. Ms. Thompson resides in the United States. Precisely where she resides, however, is not known.

[2] The background to the action and why Ms. Thomson is a defendant is as follows:

a. On July 29, 2019, it was disclosed to the public that the information technology systems of Capital One Financial Corporation, Capital One, N.A., Capital One Bank (USA), N.A., and Capital One Services (Canada) Inc., (collectively "Capital One") had been hacked and personal information had been misappropriated. The data had been stored on computer servers owned by Amazon Web Services Inc. and Amazon Web Services (Canada) (collectively "Amazon"). As a consequence of this data breach, the personal and confidential information of an estimated 6 million Canadian Capital One customers was compromised.

b. Ms. Thompson, who is a resident of Seattle, Washington, was a computer programmer at Amazon. It is alleged that she wrote a computer program that scanned customer accounts to locate a firewall misconfiguration that allowed access to data stored on a computer.

c. It is alleged that using the online pseudonym "Erratic", on March 22 or 23, 2019, Ms. Thompson accessed Capital One's stored data and misappropriated it. It is alleged that amongst other things, Ms. Thompson used the stolen data to mine for cryptocurrency.

d. It is alleged that Ms. Thompson also posted unencrypted data on a website known at GitHub, which is operated by GitHub Inc. The GitHub website is a forum for software developers to share information.

e. On July 19, 2019, Ms. Thompson was arrested in Seattle and she was charged with, among other things, fraud and computer fraud.

f. On August 6, 2019, Ms. Del Giudice commenced this action with respect to the data breach. Along with Capital One, Ms. Thompson is a named defendant.

[3] The background to the motion for substitutional services is as follows:

a. In the summer of 2020, Class Counsel made inquiries in the United States, where there is a parallel class action about effecting service on Ms. Thompson, but Class Counsel was unable to determine where Ms. Thompson was living.

b. However, Class Counsel did learn that in her criminal proceedings, Ms. Thompson was represented by Mohammad Hamoudi, a public defender, and periodically by Brian Klein, a California lawyer, who may have been offering his services pro bono.

c. Class Counsel also learned that as part of Ms. Thompson's bail conditions, she must reside within the Western District of Washington State and must inform her attorney of her address and any change in address within one business day. Attempts were made to locate her without success.

d. As part of the bail conditions, Ms. Thompson is not permitted to use a computer or have internet access without prior approval of the United States Probation and Pretrial Service Office, and thus Ms. Thompson does not currently have a presence on the internet.

e. In October and November 2020, Class Counsel asked Mr. Hamoudi if he would provide an address or accept service of court documents on behalf of Ms. Thompson. Mr. Hamoudi, who must know Ms. Thompson's address, declined the requests.

f. Around the same time, Class Counsel's attempts to correspond with Mr. Klein went unanswered.

g. In late November 2020, the Plaintiffs brought a motion for substitutional service on Ms. Thompson.

h. At a December 2, 2020 case conference, I directed Class Counsel to make further investigations to locate Ms. Thompson. I directed that if those efforts were not productive, then the Plaintiffs could bring a motion in writing for substitutional service.

i. After the case conference, Class Counsel contacted the American prosecutors and Pre-Trial Services, which is involved in Ms. Thompson's U.S. proceedings. Class Counsel also contacted the Federal Bureau of Investigation, who had conducted the intentional investigation that led to Ms. Thompson's arrest. Class Counsel requested information to locate an address for Ms. Thompson. All three agencies declined the requests for information.

j. Between January 7, 2021 and January 22, 2021, Class Counsel engaged ABC Legal to conduct an investigation to find an address for service of documents on Ms. Thompson.

k. It is to be noted that ABC Legal is used by the U.S. Department of Justice to provide services for the "Central Authority" pursuant to the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters signed at The Hague on November 15, 1965 (the "Hague Convention").

l. ABC Legal's investigation revealed some leads for possible addresses for Ms. Thompson, but the addresses turned out to be incorrect.

m. Class Counsel has learned that Ms. Thompson is scheduled for an in-court appearance on February 8, 2021.

[4] Class Counsel seeks an order for substitutional service by way of having the documents emailed to Ms. Thompson's attorney, Mohammad Hamoudi through email at: ********@**.org.

[5] Class Counsel seeks to have the following documents served substitutionally: (a) Fresh as Amended Statement of Claim, (b) Notice of Motion for a Bifurcated Certification Motion, (c) Certification Motion Record, (d) August 27, 2020 Case Management Direction and (e) the factum for Phase 1 of the Certification Motion.

[6] Rule 17.05 of the Rules of Civil Procedure[^2] prescribes the manner of service for parties residing outside Ontario. The rule states:

MANNER OF SERVICE OUTSIDE ONTARIO

Definitions

17.05 (1) In this rule,

"contracting state" means a contracting state under the Convention;

"Convention" means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters signed at The Hague on November 15, 1965.

General Manner of Service

(2) An originating process or other document to be served outside Ontario in a jurisdiction that is not a contracting state may be served in the manner provided by these rules for service in Ontario, or in the manner provided by the law of the jurisdiction where service is made, if service made in that manner could reasonably be expected to come to the notice of the person to be served.

Manner of Service in Convention States

(3) An originating process or other document to be served outside Ontario in a contracting state shall be served,

(a) through the central authority in the contracting state; or

(b) in a manner that is permitted by the Convention and that would be permitted by these rules if the document were being served in Ontario.

Proof of Service

(4) Service may be proved,

(a) in the manner provided by these rules for proof of service in Ontario;

(b) in the manner provided by the law of the jurisdiction where service is made; or

(c) in accordance with the Convention, if service is made in a contracting state (Forms 17A to 17C).

[7] The United States is a signatory state of the Hague Convention, and where service is made outside Ontario in a signatory state of the Hague Convention, the service will not be effective unless it is compliant with the requirements of the convention.[^3] As a general rule, an order to substitute, dispense with or validate service is not available where service is required to be effected in a contracting state under the Hague Convention.[^4] There, however, may be an exception to the exclusivity of the Hague Convention where the plaintiff has exhausted all avenues available under the Convention and would be denied access to justice if not permitted to use an alternative means of service.[^5]

[8] Another recognized exception to the exclusivity of the Hague Convention is when the Hague Convention itself provides an exemption. Visualize, Article 1 of the Hague Convention states that the Convention shall not apply where the address of the person to be served with the document is not known.[^6] That, of course, is the circumstance in the immediate case.

[9] In the immediate case, the Central Authority for service in the United States and its sub-contractor, ABC Legal, have been unable to serve the documents due to the inability to locate Ms. Thompson, with the result that service in the immediate case must comply with Rule 17.05(3)(b). That rule provides that documents to be served outside Ontario in a contracting state shall be served in a manner that is permitted by the Convention and that would be permitted if the document were being served in Ontario.

[10] Thus, the issues in the immediate case are: (a) whether substitutional service would be permitted if the documents were being served in Ontario; and (b) if so, what is the appropriate manner of substitutional service.

[11] Rule 16.04 governs when substitutional service is permitted. The rule states:

SUBSTITUTED SERVICE OR DISPENSING WITH SERVICE

Where Order May be Made

16.04 (1) Where it appears to the court that it is impractical for any reason to effect prompt service of an originating process or any other document required to be served personally or by an alternative to personal service under these rules, the court may make an order for substituted service or, where necessary in the interest of justice, may dispense with service. R.R.O. 1990, Reg. 194, r. 16.04 (1).

Effective Date of Service

(2) In an order for substituted service, the court shall specify when service in accordance with the order is effective.

(3) Where an order is made dispensing with service of a document, the document shall be deemed to have been served on the date of the order for the purpose of the computation of time under these rules.

[12] Master Dash summarized the test for substituted service in Chambers v. Muslim,[^7] as follows:

What is the test for substituted service under rule 16.04? The plaintiff must satisfy the court, on proper evidence, that the proposed method of substituted service will have "some likelihood" or a "reasonable possibility" of bringing the action to the attention of the defendant, otherwise "the exercise of obtaining an order for substituted service is a charade." One must select the mode of service "that is most likely to bring the document in question to the attention of the defendant". This could include publication in a newspaper in the defendant's locality. However, "substituted service is not available if the whereabouts of the defendant are unknown". If "the defendant will not learn of the action through substituted service" it may be "more appropriate to ask for an order dispensing with service altogether". Furthermore, before substituted service is ordered the plaintiff must show that "all reasonable steps have been taken to locate the party and to personally serve him or her. What is reasonable will depend on the nature of the case, the relief claimed, the amount involved and all of the surrounding circumstances." Substituted service is not intended to spare the inconvenience or expense or difficulty of personal service if personal service can be effected.

[13] In the immediate case, the Plaintiffs through Class Counsel have made concerted and persistent efforts to locate and serve Ms. Thompson, who undoubtedly knows already about the civil claims that have been brought against her on both sides of the international border. There is a high likelihood that her attorney Mr. Hamoudi will bring the documents to Ms. Thompson's attention if the documents are delivered to him. Thus, in the immediate case, substitutional service would be permitted if the documents were being served in Ontario and communications with Mr. Hamoudi are a reasonable and efficacious manner of substitutional service.

[14] For these reasons, I grant the motion as requested.

Perell, J.

Released: February 4, 2021

[^1]: S.O. 1992, c. 6. [^2]: R.R.O. 1990, Reg. 194. [^3]: Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, affg 2012 ONSC 1522, rev'g 2011 ONSC 5465 (Master); Gray v. SNC-Lavalin Group Inc., 2012 ONSC 3735. [^4]: Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, affg 2012 ONSC 1522, rev'g 2011 ONSC 5465 (Master). [^5]: Zhang v. Jiang (2006), 2006 CanLII 24131 (ON SC), 82 O.R. (3d) 306 (Ont. Master). In Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189, the Court of Appeal passed on deciding whether Zhang is correctly decided. [^6]: Petrovic v. Petrovic, 2019 ONSC 5838 [^7]: (2007), 2007 CanLII 82791 (ON SC), 87 O.R. (3d) 784 at para. 13 (Master) (citations omitted).