On August 4, 2021, the Ontario Superior Court of Justice (the Court) issued its decision in Del Giudice v Thompson, 2021 ONSC 5379, striking the plaintiffs’ Fresh as Amended Statement of Claim (the Claim) and dismissing its motion to certify a class action claim for data misappropriation and misuse stemming from the 2019 data breach of personal information from Capital One.

In March 2019, a data breach incident resulted in the personal and confidential information of 106 million Capital One credit card applicants being exposed or becoming vulnerable to exposure. An estimated six million Canadians were affected by this breach.

In the present case, the plaintiffs pleaded that they are entitled to a damage award totalling $240 billion. However, the Court noted that at the time of the carriage motion, the plaintiffs pleaded entitlement to damages amounting to $10.9 billion and seemed poised to advance the causes of action for a data breach case.

The Court ultimately struck out the plaintiffs’ Claim in its entirety, outlining the following three reasons.

First, the Court stated that the Claim egregiously contravened the rules of pleading. The Court struck out numerous paragraphs in whole or in part for reasons such as failing to plead a material fact; including irrelevant and non-material or embarrassing or scandalous facts; containing the evidence by which a material fact is to be proved; and/or containing argumentative, vague, repetitive, redundant, irrelevant, inconsistent, or scandalous allegations.

Second, the Court held that the plaintiffs failed to plead any legally viable causes of action. The plaintiffs alleged 19 separate causes of action including intrusion on seclusion; misappropriation of financial personality; breach of data protection laws; conversion; breach of confidence, trust, and fiduciary duty; strict liability; vicarious liability; negligence; and duty to warn. In addition, the plaintiffs pleaded negligent breach of contract, which the Court described as a “legally meaningless concept”, and appeared to purposefully avoid a straightforward and certifiable breach of contract claim applicable to all class members.

Lastly, the Court found that the plaintiffs could have pleaded a straightforward data breach case about a single incident, rather than an ongoing data misappropriation and misuse case. In examining Class Counsel’s compendium, the Court described the document as a “tautological legal logarithm” designed to “invariably and inevitably achieve victory for the Class Members, whatever the material facts might be”.

The Court therefore struck the plaintiffs’ Fresh as Amended Statement of Claim without leave to amend and dismissed the plaintiffs’ certification motion.

Summary By: Steffi Tran


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