Motion for Certification of Class Proceeding Against TD Bank Dismissed

On March 9, 2005, Justice Maurice Cullity of the Ontario Superior Court of Justice dismissed the motion of the proposed representative plaintiff, Paul Cassano, for certification of Cassano v. Toronto-Dominion Bank as a class proceeding. The action, commenced in 1997, concerned allegedly unauthorized and undisclosed “fees” charged by the TD Bank to holders of its Visa credit cards in respect of foreign currency transactions. In the event that the action was certified as a class proceeding, the plaintiff sought to recover $100 million, being all of the fees paid by cardholders in respect of foreign currency transactions until September 2001 (when the existence of the fees was specifically disclosed in the applicable cardholder agreements).

In dismissing the motion for certification, Justice Cullity found that, although the question of whether TD was authorized under the cardholder agreements to charge the fees in question raised a common issue, the claim for compensatory damages for breach of contract was not common to all cardholders, as the proper measure of a cardholder’s loss was not the amount of the fees paid, but the value that the cardholder would have received had disclosure of the fees been made. This could only be determined on an individual basis as certain cardholders would have continued to use the card even with knowledge of how the foreign exchange rate was calculated and, accordingly, would have suffered no loss. Justice Cullity noted that Mr. Cassano himself had continued to use his card for foreign exchange transactions after learning about the fees. Given that the proposed class was comprised of millions of TD Visa cardholders, a class proceeding would not be the preferable procedure for the resolution of the common issues identified.

The plaintiff was represented at the hearing by Paul J. Pape, Q.C., of Paul J. Pape, Barristers, as well as Harvey T. Strosberg, Q.C., of Sutts, Strosberg LLP. TD Bank was represented by Lyndon Barnes, Laura Fric and Allan Coleman of Osler, Hoskin & Harcourt LLP.