Mortgage Prepayment Class Actions

Eight class-action lawsuits, brought against major Canadian financial institutions, including The Toronto-Dominion Bank, Canada Trustco Mortgage Company and The National Bank of Canada, on behalf of hundreds of thousands of residential mortgage customers, seek hundreds of millions of dollars in compensation for alleged over-payments made by mortgage customers discharging their residential mortgages prior to maturity. The plaintiffs claim that the financial institutions have erred in calculating the compensation to be paid to the financial institutions in this circumstance, resulting in an over-payment to the financial institutions. The motions court Judge dismissed the plaintiffs' motions for certification, finding that none of the requirements for certification were met. Significantly, the Court found that the conduct of the plaintiffs' lawyer in devising, in some instances manufacturing the claim against the financial institutions, was a relevant factor in assessing the appropriateness of certification. Additionally, the motions court Judge found that a claim for breach of an implied term of a contract was not amenable to certification.

The plaintiffs' appeal to the Divisional Court was heard in September 2007, and dismissed by reasons released in December 2007. The Divisional Court upheld the decision of motions court Judge. The Divisional Court found that the actions were not suitable for certification and agreed with the motion court Judge's findings with respect to the conduct of the plaintiffs' lawyer.
The plaintiffs sought leave to appeal to the Court of Appeal for Ontario, which was denied in May 2008. The plaintiffs' have advised that no further steps will be taken in these action.

McCarthy Tétrault LLP represented the defendants, the Toronto-Dominion Bank, Canada Trustco Mortgage Company and The National Bank of Canada with a team led by Paul Morrison and Paul Steep, and that included David Leonard, Lisa Constantine and Hovsep Afarian.

Torys LLP represented London Life Insurance Company and Canadian Imperial Bank of Commerce, with Wendy Matheson and Andrew Gray representing London Life, and Patricia Jackson and Stuart Svonkin representing CIBC.

Baker & McKenzie LLP represented Laurentian Bank of Canada with a team of J. Brian Casey and John Pirie.

Borden Ladner Gervais LLP represented Bank of Montreal, Bank of Nova Scotia and Soctia Mortgage Corporation with a team of Martin Sclisizzi, Freya Kristjanson and Heather Pressione.

Stockwoods LLP represented the Law Foundation of Ontario, which appeared on the costs issue, with a team of Scott Hutchison and Brennagh Smith.

Kirk Baert and Celeste Poltak at Koskie Minsky LLP and Margaret Waddell and Odette Soriano of Paliare Roland acted for the plaintiffs.