20 LEXPERT MAGAZINE
|
Q3 2019
Gervais LLP.
e Interested Person, Enbridge Inc. was
represented by Maureen Killoran, QC and
Sean Sutherland of Osler, Hoskin & Har-
court LLP.
e Interested Persons, Coalition of In-
terested Parties were represented by Alyssa
Tomkins of CazaSaikaley LLP.
e Interested Person, Railway Associ-
ation of Canada was represented by Nicho-
las Hughes, Emily MacKinnon and Sarah
Blanco of McCarthy Tétrault LLP.
KAPLAN V. CASINO RAMA
SERVICES INC., 2019 ONSC 2025
DECISION DATE: MAY 6, 2019
Justice Edward Belobaba of the Ontario Su-
perior Court of Justice dismissed a motion
to certify a privacy class action arising out of
a cyberattack on Casino Rama that includ-
ed allegations of breach of privacy, breach of
contract and negligence. is was the first
contested certification hearing relating to a
cyberattack against an Ontario company.
e proposed class proceeding related to
a criminal cyberattack in 2016 in which an
anonymous hacker accessed Casino Rama's
computer system and stole data relating to
customers, employees, and suppliers. When
ransom demands proved futile, the hacker
posted the stolen data on the internet. Ca-
sino Rama and the Ontario Lottery and
Gaming Corporation promptly responded
to the cyberattack by, among other things,
notifying all appropriate authorities and
implementing a broad notice program for
patrons and employees. By the time of the
certification motion, there was no evidence
that anyone had experienced compensable
financial or psychological loss as a result of
the cyberattack.
e court held that "[t]he fact that there
are no provable losses and that the primary
culprit, the hacker, is not sued as a defendant
makes for a very convoluted class action.
Class counsel find themselves trying to force
square (breach of privacy) pegs into round
(tort and contract) holes." Justice Belobaba
held that the proposed class action ulti-
mately "collapse[d] in its entirety" under the
common issues certification criterion. "Any
common issues are completely overwhelmed
by these individual investigations, such that
commonality is not established," he wrote.
e plaintiffs have filed notices of appeal
of the decision with the Ontario Divisional
Court and the Ontario Court of Appeal.
e plaintiffs were represented by
eodore P. Charney and Tina Q. Yang
of Charney Lawyers and David Robins of
Strosberg Sasso Sutts LLP.
e defendants, CHC Casinos Canada
Limited, the Ontario Lottery and Gam-
ing Corporation, Casino Rama Services
Inc., and Penn National Gaming, Inc.,
were represented by Blake Cassels &
Graydon LLP, with a team led by Cathy
Beagan Flood and Nicole Henderson, and
including Anne Glover, Wendy Mee, John
Tuzyk, Bryson Stokes, Jessica Lam and
Christopher DiMatteo.
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