NEW: The motion for settlement approval was heard on February 22, 2018. On May 18, 2018, the Judge approved the settlement. Please continue to monitor this website for instructions about how to make your claim for compensation. The forms are not yet available but should be available in the coming weeks.
1. After almost five years of prosecuting this class action including contested motions for certification in the Federal Court of Canada and the Federal Court of Appeal, subject to court approval, the parties agreed to settle the action for $17.5 million, plus an unlimited fund for Class Members who suffered actual provable damages.
2. The parties signed a Settlement Agreement. Click here to review the Settlement Agreement. Click here to review the Notice of Proposed settlement in English. Click here to review the Notice of Proposed Settlement in French.
3. The $17.5 million fund will be used to compensate the Class Members for the inconvenience associated with the loss of their personal information capped at a maximum of $60 per Class Member, plus Class Counsel fees, disbursements and taxes thereon, and the costs to administer the settlement.
4. An additional unlimited fund will be available for those Class Members who suffered actual provable losses. The Court will appoint an Arbitrator who will decide whether each individual Class Member who applies to the fund can be awarded damages. Class Counsel will not be paid any fees from the additional funds.
5. On May 18, 2018, the settlement was approved. Click here to review the Reasons of the Court. The forms to claim for compensation will be available in approximately 30 days. Due to the high volume of inquiries, counsel will not be able to respond to individual inquiries.
6. Click here to review the answers to Frequently Asked Questions about the settlement.
7. The history of this action follows:
8. On January 11, 2013, the Minister of Human Resources and Skills Development announced that an external hard drive containing the private details of some 583,000 Canadians went missing. According to the press release, the Government of Canada has known about this since November 5, 2012.
9. The law firms of Sutts, Strosberg LLP (now Strosberg Sasso Sutts LLP) , Charney Lawyers and Branch MacMaster LLP commenced a proposed class action against the Attorney General of Canada on behalf of all persons whose information was lost. Bob Buckingham Law also commenced a proposed class action against the Attorney General of Canada with respect to the same matter. The four law firms have agreed to work together. Two other law firms, Jensen Shawa Solomon Duguid Hawkes LLP and Siskinds LLP commenced proposed class actions against the Attorney General of Canada with respect to the same matter, but each agreed that those actions would be stayed.
10. An announcement made in a government posting February 19, 2013 said, in part:
Please be advised that the electronic storage device containing personal information of 583,000 Canada Student Loan borrowers who were clients of the Canada Student Loans Program (CSLP) from 2000-2006 also contained personal information of affected clients who fall outside the 2000-2006 period. Of the individuals affected, 2,800 fall outside the 2000-2006 period and of those 2,600 are in 2007. The department has already communicated with over 1,600 of these affected borrowers. Efforts continue to locate current contact information for all affected borrowers.
11. The certification hearing took place on December 17 and 18, 2013 at the Federal Court, in the City of Toronto, Province of Ontario.
12. On March 17, 2014, this action was certified as a class action by the Federal Court. Click here to review the reasons of the court. The decision was under appeal. On July 6, 2015, the Federal Court of Appeal released its decision in favour of the plaintiffs. Click here to review the reasons of the court. Click here to view the Order (Certification). Click here to view the Notice of Certification in English. Click here to view the Notice of Certification in French.
13. We will continue to update this website as developments occur.
14. If you would like to know more about how a class action works, please click here.
This website provides general information to class members on a class action commenced against the Attorney General of Canada. The court will ultimately decide who will be included as a class member.
The parties agreed to settle this class action for $17.5 million, subject to court approval. For those Class Members who allege that they suffered financial harm arising from the loss of their personal information, the defendant has set up an UNLIMITED FUND in addition to the $17.5 million, and an Arbitrator will assess those claims individually. Class Counsel will not be paid a fee from any amounts paid out from the unlimited fund.
Does the settlement apply to me?
The settlement applies to all persons whose personal information was contained on an external hard drive in the control of Human Resources and Skills Development Canada (now known as Employment and Social Development Canada) or the National Student Loan Services Centre, which was allegedly lost on or around November 5, 2012. If your information was contained on that hard drive and you did not opt out of the class action, you are a class member. You may have received a letter from the government advising you that your personal information was contained on the external hard drive. You do not need to have received a letter, or kept the letter, to be a class member.
If you previously opted out of the class action, you may still be eligible to participate in the settlement, if it is approved, by submitting a claim as described below.
What can I recover under the settlement, if it is approved?
There are two parts to the settlement.
Part one: class members will be compensated for wasted time spent responding to the federal government’s announcement of the privacy breach. This compensation for wasted time has been calculated at a fixed payment of $60 per class member, based on an average of four hours of time spent responding to the privacy breach. If the total of the claims for the $60 payment exceeds the $17.5 million settlement fund (after legal fees and costs of administration), then the claims administrator will distribute the funds to each class member proportionally.
Part two: the government will fund a dispute resolution program for all class members who are seeking additional compensation for actual losses incurred as a direct result of the loss of personal & financial information contained on the hard drive. If you incurred expenses or lost money as a result of the privacy breach (for example, if your identity was stolen and you paid to replace your government identification card(s), or if you were the victim of fraud for which your bank did not reimburse you), you can claim those costs back.
The dispute resolution process will be streamlined so that you can submit a claims form, along with supporting documentation, for review by the claims administrator. The fund is unlimited. In other words, to the extent that you can establish that you lost money or sustained financial harm for which you have not otherwise been reimbursed, you will be fully compensated.
You have the right to hire your own lawyer to assist with making an actual loss claim. Class Counsel will not be involved in this aspect of the settlement and are not receiving any legal fees on awards for actual loss claims.
What is the rationale for the settlement?
It has been five years since the hard drive went missing. The Government of Canada and the RCMP have conducted investigations into the loss of the hard drive. The results of the RCMP investigation were inconclusive as to whether the hard drive was lost or stolen. Affidavit evidence from the Government of Canada confirms that the government is not aware of any evidence that the personal information from the hard drive has been compromised.
Class Counsel retained their own cybersecurity expert to conduct an investigation into whether the personal information on the hard drive was compromised by criminals. To date, the expert has not been able to locate any evidence (including on the dark web) of criminal activity relating to the information on the hard drive.
Therefore, as a matter of law, class members may only be able to recover for wasted time associated with responding to the breach, which on average is in the range of four hours, reflected in part one of the settlement, as discussed above.
In the event that some class members have experienced financial harm as a result of the privacy breach, then the government has established an unlimited fund to compensate them, which forms part two of the settlement, as discussed above.
When is the settlement approval hearing?
The settlement approval hearing will be on February 22, 2018 at 1:00 p.m. EST in Ottawa, Ontario. At the settlement approval hearing, the Court will consider whether the proposed settlement is fair, reasonable and in the best interests of the Class and whether to approve Class Counsel fees. If you do not oppose the settlement, you do not need to appear at the hearing or take any other action at this time.
How do I make a claim, if the settlement is approved?
If the proposed settlement is approved, further instructions about how to make a claim for compensation will be posted on this website and will be emailed to those people who registered with Class Counsel and provided a valid email address. There is no need to register again if you have already registered through the Registration System or if you have already provided your email address to Class Counsel.
With respect to the $60 payment, it is anticipated that you will be required to submit a short claims form electronically to the claims administrator identifying yourself as one of the students who received a notice letter about the privacy breach from the federal government, and requesting $60.
With respect to an actual loss claim, it is anticipated that you will submit a claims form electronically to the claims arbitrator describing how you experienced financial harm and providing documentation to support your claim. The government will then have an opportunity to respond in writing to your claim. The claims arbitrator will then make a decision on your claim or may ask you for additional information or documents. Once the claims arbitrator makes a decision, you will have a right to appeal.
How will the settlement affect my student loan, if it is approved?
There will be no impact on your student loan. Any monies owed to you pursuant to this settlement will be paid directly to you, without regard to the status of your student loan. You are still required to continue paying any outstanding balance on your student loans.
Why isn't my student loan being forgiven under this settlement?
There is no basis in law for forgiving an outstanding debt in these circumstances.
Why are the lawyers seeking fees of $5,250,000 plus taxes, but I am receiving less than $100 for inconvenience?
Class actions are designed so that many people with relatively modest claims can band together to form a class in order to prosecute an action against a common defendant. It is not economically feasible for one person to pay a lawyer to prosecute an action such as this one. No lawyer would take it on contingency for just one individual, and it would be financially unfeasible for the class member to pay the lawyer to prosecute the action.
The class proceedings rules of court provides for lawyers’ fees to be approved by the court. Class actions, by their nature, deal with small claims generally by class members, that totaled up, equal large claims that a defendant or defendants must pay. As for the proposed Class Counsel fees in this case, the court will decide whether our fees are fair and reasonable given the total result that was achieved for the Class Members. Measuring the proposed fees against your personal recovery isn’t correct in this circumstance.
In this case, Class Counsel commenced this lawsuit over five years ago and have spent an enormous amount of time prosecuting the lawsuit. When the class action was certified in 2016, the Notice of Certification was sent to the Class Members by the defendant and published widely (including at https://strosbergco.com/wp-content/uploads/2017/06/1428188-notice-eng.pdf). The Notice of Certification clearly stated that Class Counsel was working on a contingency fee arrangement and may ask the court to approve fees of up to 1/3 of the recovery. Class Counsel ensured that the fee arrangement was published early on in the proceedings so the Class Members have as much information as possible about that. If the lawsuit is not successful, Class Counsel will receive nothing at all, so the lawyers bear the risk of that.
And finally, if you suffered additional harm, aside from the payment for inconvenience, there is an unlimited fund available and you can apply to the Arbitrator for damages. Class Counsel seek no fees on that additional fund.
What is the timeline for distributing the settlement, if it is approved?
If the settlement is approved, there will be a period during which class members can submit their claims. The deadline for submitting your claim will be included in the Notice of Settlement Approval which will be posted on this website emailed to those people who registered with Class Counsel and provided a valid email address. Once the deadline has expired, the claims administrator will collect all of the claims for the part one/$60 payment and distribute payment accordingly. If the total of the claims for the $60 payments exceeds the $17.5 million settlement fund (after legal fees and costs of administration), then the claims administrator will distribute the funds to each class member proportionally.
Who is paying Class Counsel’s legal fees?
Class Counsel have been litigating this case on behalf of the class since 2012. Pursuant to a contingency fee agreement entered into with the representative plaintiffs, Class Counsel are eligible to recover 30% of the settlement fund, plus HST and disbursements. Any fees paid to Class Counsel must be approved by the Court as being fair and reasonable, and will be paid directly out of the settlement fund.
Dec 22, 2017
The parties have agreed to settle this action subject to court approval and have signed a Settlement Agreement. Click here to review the Settlement Agreement. Click here to review the Notice of Proposed Settlement in English. Click here to review the Notice of Proposed Settlement in French. The court will determine whether the settlement is fair, reasonable and in best interest of the Class at a hearing on February 22, 2018 at 1:00pm.