Court File and Parties
COURT FILE NO.: CV-19-00625262-00CP
DATE: 20221212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID MARK SLAPINSKI
Plaintiff
- and -
CAPITAL ONE SERVICES (CANADA) INC., CAPITAL ONE FINANCIAL CORPORATION, CAPITAL ONE, N.A., and CAPITAL ONE BANK (USA), N.A.
Defendants
Proceeding under the Class Proceedings Act, 1992
Counsel:
Michael J. Peerless, Matthew D. Baer, Emily Assini, Vadim Kats, Ilya Kirtsman, Christopher Du Vernet, and Carlin McGoogan for the Plaintiff
Laura Cooper for the Defendants
HEARD: In writing
REASONS FOR DECISION
PERELL, J.
[1] This is a proceeding under the Class Proceedings Act, 1992.[^1] This is a consent motion, in writing. It is a motion for:
a. An Order that the within proceeding be discontinued as against the Defendants;
b. An Order that a Discontinuance Notice, substantially in the form attached hereto as Schedule “A” is approved pursuant to section 19 and section 29 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”);
c. An Order that a Discontinuance Notice shall be posted on the Plaintiff’s website;
d. An Order granting the motion on a without costs and with prejudice basis; and
e. Such further and other relief as counsel may request and this Honourable Court may deem just.
[2] Schedule “A” states:
On August 9, 2019, a proposed class action was commenced in Ontario by David Slapinski (Court File Number CV-19-00625262-00CP), alleging that, on or around March 22 and 23, 2019, Paige A. Thompson (“Thompson”) stole personal information from servers that had been leased by Capital One Financial Corporation, Capital One, N.A., Capital One Bank (USA), N.A., and Capital One Services (Canada) Inc., (collectively “Capital One”) from Amazon Web Services (the “Claim”). The Claim alleged that, as a consequence of this data breach, the personal and confidential information of an estimated 6 million Canadians was compromised.
The parties have reached an agreement to discontinue the Claim. The discontinuance was approved by the Ontario Superior Court of Justice. The discontinuance relates only to the Claim and not to any other outstanding claims which relate to the data breach that is the subject of the Claim or to claims against other institutions in relation to similar data breaches.
[3] On August 9, 2019, this action was commenced by David Mark Slapinski in the Ontario Superior Court of Justice located in Toronto, Ontario.
[4] Mr. Slapinski retained McKenzie Lake Lawyers LLP and Landy Marr Kats LLP to represent him as putative Class Counsel.
[5] On July 31, 2019, a similar action was commenced by Penny Stewart in the Ontario Superior Court of Justice located in Toronto, Ontario, bearing Court File No. CV-19-00624717-00CP.
[6] Ms. Stewart retained Du Vernet, Stewart Barristers and Solicitors to represent her as putative Class Counsel.
[7] Subsequently, the respective Class Counsel received instructions to work together and prosecute a single action under the within Court File No. in Mr. Slapinski’s action.
[8] On August 6, 2019, a third similar claim was commenced by Rina Del Giudice in the Ontario Superior Court of Justice located in Toronto, Ontario, bearing Court File No. CV-19-00625030-00CP.
[9] Ms. Del Giudice had retained Diamond and Diamond Lawyers LLP and Hotz Lawyers to represent her as putative Class Counsel.
[10] There was a carriage motion, and on April 30, 2020, I granted carriage to Class Counsel in the Del Giudice action. I stayed the Slapinski action.[^2]
[11] The certification motion followed, and on August 4, 2021, I dismissed the motion seeking certification of the Del Giudice Action. I also lifted the stay of the Slapinski action.[^3]
[12] After further research and investigation, including the facts and the results of the motion in the Del Giudice Action, the Plaintiff, in consultation with putative Class Counsel, has decided that it is no longer in his best interests to pursue the within action.
[13] The Defendants are prepared to have the action discontinued without costs and have executed consents.
[14] Putative Class Counsel had been contacted by approximately 100 individuals, collectively, with respect to this class action, including the Representative Plaintiff. Class Counsel will publish a copy of the Order discontinuing this matter on their respective firm websites as well as send it directly to every putative Class Member who has contacted them.
[15] Section 29 of the Class Proceedings Act, 1992 requires court approval for the discontinuance, abandonment, dismissal or settlement of a proceeding commenced under the Act. Section 29 states:
Discontinuance, abandonment and settlement
- (1) A proceeding commenced under this Act and a proceeding certified as a class proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.
Settlement without court approval not binding
(2) A settlement of a class proceeding is not binding unless approved by the court.
Effect of settlement
(3) A settlement of a class proceeding that is approved by the court binds all class members.
Notice: dismissal, discontinuance, abandonment or settlement
(4) In dismissing a proceeding for delay or in approving a discontinuance, abandonment or settlement, the court shall consider whether notice should be given under section 19 and whether any notice should include,
(a) an account of the conduct of the proceeding;
(b) a statement of the result of the proceeding; and
(c) a description of any plan for distributing settlement funds.
[16] A motion for discontinuance or abandonment should be carefully scrutinized, and the court should consider, among other things: whether the proceeding was commenced for an improper purpose; whether, if necessary, there is a viable replacement party so that putative class members are not prejudiced; or whether the defendant will be prejudiced.[^4]
[17] I am satisfied that the test for a discontinuance has been met in the immediate case.
[18] Order to go as requested.
Perell, J.
Released: December 12, 2022
COURT FILE NO.: CV-19-00625262-00CP
DATE: 20221212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID MARK SLAPINSKI
Plaintiff
- and –
CAPITAL ONE SERVICES (CANADA) INC., CAPITAL ONE FINANCIAL CORPORATION, CAPITAL ONE, N.A., and CAPITAL ONE BANK (USA), N.A.
Defendants
REASONS FOR DECISION
PERELL J.
Released: December 12, 2022
[^1]: S.O. 1992, c. 6. [^2]: Del Giudice v. Thompson, 2020 ONSC 2676. [^3]: Del Giudice v. Thompson, 2021 ONSC 5379. [^4]: Green v. The Hospital for Sick Children, 2021 ONSC 8237; Batten v. Boehringer Ingelheim, 2021 ONSC 6606; Bardoul v. Novartis Pharmaceuticals Canada Inc., 2021 ONSC 2261; Winter v. C.R. Bard, 2020 ONSC 3532; Naylor v. Coloplast Canada Corporation, 2016 ONSC 1294; Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2012 ONSC 5288; Frank v. Farlie, Turner & Co, LLC, 2011 ONSC 7137; Hudson v Austin, 2010 ONSC 2789; Sollen v. Pfizer, 2008 ONCA 803, [2008] O.J. No 4787 (C.A.), aff'g 2008 8618 (ON SC), [2008] O.J. No. 866 (S.C.J.); Logan v. Canada (Minister of Health), [2003] O.J. No. 418 (S.C.J.), aff’d (2004), 2004 184 (ON CA), 71 O.R. (3d) 451 (C.A.).