The Ontario Divisional Court refused to certify a class action against TD Bank in which the plaintiffs alleged that the bank had failed to disclose certain fees to its customers. In the action, the plaintiffs sought more than $100 million in damages arising from allegedly unauthorized and undisclosed “fees” charged by the TD Bank to holders of its VISA credit cards when they incurred foreign exchange transactions, e.g., when they purchased goods in another country.
In Cassano v. The Toronto-Dominion Bank, released on July 10, 2006, the Divisional Court panel of Justices Cunningham, Smith and Cameron upheld the decision of Justice Maurice Cullity of the Ontario Superior Court of Justice. The Divisional Court held that the cause of action, being breach of contract based on alleged non-disclosure, was correctly described by Justice Cullity and manifest from the plaintiff's pleadings, notices of motion and submissions at the motion hearing.
The plaintiff's argument on appeal that the breach of contract had been misidentified by Justice Cullity, and that the justice had therefore erred in finding that damages could not be determined on a class-wide basis, was found by the Divisional Court to be an attempt to take a “second kick at the can.”
In its reasons, the Divisional Court agreed with Justice Cullity that since compensatory damages for breach of contract are designed to put the plaintiff in the same position as if the contract had been performed, in this case one would have to determine what would have happened if disclosure of the fees had been made. Accordingly, each TD VISA cardholder would have to be asked whether he or she would have entered into each foreign exchange transaction had the fees been disclosed in order to assess damages. The Divisional Court held that such a task was clearly “an unmanageable prospect for class action status.”
TD Bank was represented by Lyndon Barnes, Laura Fric and Allan Coleman of Osler, Hoskin & Harcourt LLP. The plaintiff was represented by Paul J. Pape of Pape Barristers P.C. The plaintiff is also represented by Harvey T. Strosberg, Q.C., of Sutts, Strosberg LLP.