Fridays with Rogers Partners

At our weekly meeting, Chris MacDonald discussed the Superior Court’s decision in Del Giudice v. Thompson, 2021 ONSC 2696. In this decision, the plaintiffs, Rina Del Giudice and Daniel Wood, sought court approval of a settlement agreement with the defendant, Github Inc., pursuant to section 29 of the Class Proceedings Act, 1992, whereby the action would be discontinued against Github. 

Factual Background

The defendant, Paige Thompson, was at one time a computer programmer at Amazon. While working there, she hacked the database of the defendants, Capital One. The Capital One data was stored on the servers of the defendants Amazon Web Services. As a consequence of this data breach, the personal and confidential information of an estimated 6 million Canadian Capital One customers was compromised.

Thompson allegedly misappropriated the data. She used it to mine for cryptocurrency. She also posted unencrypted data on the Github’s website. GitHub is an American corporation and a subsidiary of Microsoft, and its website is a forum for software developers to share information.

Decision and Reasoning

Section 29 of the Class Proceedings Act provides that a proceeding under the Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.

The Court did not approve the settlement for two reasons.

First, the Court held that it could not make a binding ruling that it did not have jurisdiction based on the consent of the parties alone. Justice Perrell noted that the scope of the Superior Court’s jurisdiction must be decided on its merits.

Second, His Honour found that the evidence and the argument of the parties supported actually addressing whether the Superior Court had jurisdiction, and whether it was in the best interests of the class members to let Github out of the action.

Having heard Justice Perrell’s comments, the parties requested that the motion be adjourned. The Court adjourned the motion sine die.