Antoine Brylowski

Class members who are not representative plaintiffs have no direct right of appeal from an order approving a settlement in a certified class action.

The Court of Appeal affirmed that the decision in Dabbs v. Sun Life Assurance Co. of Canada remains good law and has not been superseded by subsequent decisions.

A settlement approval order is neither a judgment on common issues nor a determination of aggregate damages, and therefore class members cannot seek leave to appeal under section 30(5) of the Class Proceedings Act.

Permitting individual class members to appeal settlement approvals would introduce uncertainty into settlement negotiations, undermine the authority of representative plaintiffs and class counsel, and impede the resolution of class actions.

The plaintiffs brought a motion to approve settlements with National Bank, Visa, and MasterCard in a class action alleging a conspiracy to fix merchant discount fees.

The settlements provided for a total payment of $45 million, modifications to the 'No Surcharge Rule', and cooperation in the ongoing action against the remaining non-settling defendants.

Despite objections from Wal-Mart and Home Depot regarding the breadth of the releases, the court found the settlements to be fair, reasonable, and in the best interests of the class, particularly given the weaknesses in the plaintiffs' case against Visa and MasterCard under the Competition Act.

The court also approved Class Counsel's fee request.