The Ontario Court of Appeal has certified a class action[2] alleging that Toronto-Dominion Bank breached its contract with credit card holders by failing to disclose fees on foreign currency transactions and by collecting those fees without authorization. In overturning the decision by the motions judge not to certify the action (which had been upheld by the Ontario Divisional Court), the Court of Appeal determined that an individual assessment of what each individual cardholder would have done had they known of the allegedly undisclosed fees was not required and that, in any event, an aggregate assessment of damages under the Class Proceedings Act would be appropriate. The Court of Appeal also affirmed that various provisions of the Class Proceedings Act provide powerful procedural mechanisms which permit trial courts to take a variety of approaches to assessing individual claims and distributing damages.

In a related development, the Supreme Court of Canada decided not to grant leave to appeal in Markson v. MBNA Canada Bank and in Parsons v. Coast Capital Savings Credit Union. In the first case, the Ontario Court of Appeal had found that the plaintiff need only demonstrate potential liability before having recourse to the provisions of the Class Proceedings Act relating to aggregate assessment. The second case was an application for leave to appeal from a decision of the British Columbia Court of Appeal which had found that the relevance of individual circumstances only required the refinement of certain common issues, not revocation of certification.

These three decisions, all supporting certification, illustrate a continuing trend towards certification and the courts’ reluctance to refuse to certify despite the presence of individual issues or the difficulty in assessing each class member’s claim. To learn more, please see our recent Information Bulletins on Cassano and Markson.