Recently, we reported on a decision of Perell J. on a motion to approve a partial class action settlement. In Bancroft-Snell v. Visa Canada Corporation, a consortium of class counsel (the "Consortium") commenced class proceedings in 2011 in several provinces, including Ontario, on behalf of a proposed national class against MasterCard International Incorporated, Visa Canada Corporation and most of the major financial institutions in Canada. The claim alleged a price-fixing conspiracy in respect of the "merchant discount fees" that apply to retailers on Visa and MasterCard transactions. A few years after the Consortium had commenced the British Columbia action, but before they had issued claims in Alberta and Saskatchewan, Merchant Law Group ("MLG") launched similar actions in Alberta and Saskatchewan. Carriage fights ensued in Alberta and Saskatchewan. In Alberta, the parties were ordered to engage in a judicial mediation, which resulted in a settlement, pursuant to which the Consortium agreed to make a substantial payment to MLG, out of the fees that the Consortium would receive in respect of any settlement. Perell J.'s order reduced the Consortium's fees by 10% and prohibited them from making any payment to MLG. The Consortium appealed, and MLG intervened on the appeal. The Court of Appeal also appointed an amicus curiae to defend Perell J.'s order.
On May 25, 2016, the Court of Appeal heard the appeal from that Order. The Court reserved. The decision has the potential to affect: (i) the prevalence of "copycat" class actions; (ii) how carriage fights are fought and resolved; and (iii) the test for fee approval in the context of class action settlements. We will post the outcome of the appeal on this blog, as soon as the Court releases its decision.