Defendants Awarded Costs Where Bringing Breach Class Action Was “Questionable”

In the costs motion (Kaplan v. Casino Rama, 2019 ONSC 3310) arising from the litigation regarding the Casino Rama breach, Justice Belobaba awarded costs to the defendant, saying there was neither public interest nor a novel issue sufficient to warrant costs being awarded to the plaintiffs. Justice Belobaba was of the view that the very basis for bringing the class action was questionable, a fact which played a role in the plaintiffs having to pay. This decision may have class counsel more closely scrutinizing the merits of bringing data breach class actions.

Background

In an earlier decision released on May 7, 2019, Justice Belobaba dismissed the plaintiffs’ motion for certification, finding that the proposed class action “collapsed in its entirety” at the common issues stage.

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Certification of Breach Class Action Denied in Absence of Provable Losses, Commonality

On May 7, 2019, Justice Belobaba denied the motion for certification in the class action brought against Casino Rama relating to a 2016 data breach (Kaplan v. Casino Rama, 2019 ONSC 2025). Despite having five representatives, the plaintiffs were unable to show provable losses, which significantly hampered their case. What was ultimately fatal to the motion, however, was the lack of commonality, leading Justice Belobaba to remark:

The problem here, with almost all of the [proposed common issues (“PCI”)], is that there is no basis in fact for either the existence of the PCI or its overall commonality or both.

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