Court File and Parties

COURT FILE NO.: CV-11-426591CP

DATE: 20180130

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JONATHON BANCROFT-SNELL and 1739793 ONTARIO INC.

Plaintiffs

– and –

VISA CANADA CORPORATION, MASTERCARD INTERNATIONAL INCORPORATED, BANK OF AMERICA CORPORATION, BANK OF MONTREAL, BANK OF NOVA SCOTIA, CANADIAN IMPERIAL BANK OF COMMERCE, CAPITAL ONE FINANCIAL CORPORATION, CITIGROUP INC., FEDERATION DES CAISSES DESJARDINS DU QUÉBEC, NATIONAL BANK OF CANADA INC., ROYAL BANK OF CANADA, and TORONTO-DOMINION BANK

Defendants

Counsel:

Luciana P. Brasil for the Plaintiffs

Proceeding under the Class Proceedings Act, 1992

HEARD: In writing

REASONS FOR DECISION

PERELL, J.

[1] On May 16, 2011, in Ontario, pursuant to the Class Proceedings Act, 1992,[^1] the Plaintiffs Jonathon Bancroft-Snell and 1739793 Ontario Inc., commenced a proposed class action against Visa Canada Corporation (“Visa”), Mastercard International Incorporated (“Mastercard”), Bank of America Corporation (“Bank of America”), Bank of Montreal, Bank of Nova Scotia, Canadian Imperial Bank of Commerce, Capital One Financial Corporation (“Capital One”), Citigroup Inc. (“Citigroup”), Federation des caisses Desjardins du Québec (“Desjardins”), National Bank of Canada Inc. (“National Bank”), Royal Bank of Canada, and Toronto-Dominion Bank.

[2] The Plaintiffs allege that the Defendants have conspired in Canada since March 2001 to fix, maintain, or increase or control Merchant Discount Fees, including Interchange Fees, paid by merchants who accepted payment by Visa or Mastercard credit cards. They advance a statutory cause of action pursuant to ss. 36(1) and 45(1) of the Competition Act[^2] and also claims of tortious conspiracy, unjust enrichment, waiver of tort, and constructive trust.

[3] The action is brought on behalf of all persons who, during the period commencing at least as early as March 23, 2001 and continuing through to the present (which, for settlement purposes, is the latest date of the last final judgment or order issued with respect to the claims against any of the Defendants in the Canadian proceedings, including an order approving final settlement of those claims, or any end date of the Class Period provided therein), accepted payments for the supply of goods and services by way of Visa credit cards and/or Mastercard credit cards pursuant to the terms of Merchant Agreements.

[4] Similar class actions were commenced in British Columbia, Alberta, Saskatchewan, and Québec, by parties represented by the same lawyers acting for the Plaintiffs in the Ontario action; namely: (1) Branch MacMaster, LLP; (2) Camp Fiorante Matthews Mogerman LLP; and (3) Consumer Law Group.

[5] The other four actions are: (1) Coburn and Watson’s Metropolitan Home, dba “Metropolitan Home” (previously, Watson) v. Bank of America Corporation, SCBC No. VLC-S-S-112003 (British Columbia); (2) Macaronies Hair Club and Laser Center Inc., Operating as Fuze Salon v. BofA Canada Bank, Action No. 1203-18531 (Alberta); (3) Hello Baby Equipment Inc. v. BofA Canada Bank, QB No 133 of 2013 (Saskatchewan); and (4) 9085-4886 Québec Inc. v. Visa Canada Corporation, Superior Court of Québec No. 500-06-000549-101 (Québec).

[6] The plaintiffs in the British Columbia, Alberta, Saskatchewan, Ontario and Québec proceedings have now entered into settlements with Mastercard, National Bank, and Visa. The settlements are subject to court approvals.

[7] In this motion, the Plaintiffs seek certification of the action as against National Bank, Visa, and Mastercard for settlement purposes. Previously, settlements were approved with the Defendants Bank of America ($7.75 million), Citigroup ($1.63 million), Capital One ($4.25 million), and Desjardins ($9.9 million).

[8] The background facts to those settlements and to the current motion for certification for settlement purposes are set out in my Reasons for Decision certifying the actions and approving the settlements with Bank of America, Citigroup, Capital One, and Desjardins. I shall not repeat those facts, but I shall simply incorporate them by reference.[^3]

[9] Pursuant to s. 5(1) of the Class Proceedings Act, 1992, the court shall certify a proceeding as a class proceeding if: (a) the pleadings disclose a cause of action; (b) there is an identifiable class; (c) the claims or defences of the class members raise common issues of fact or law; (d) a class proceeding would be the preferable procedure; and (e) there is a representative plaintiff or defendant who would adequately represent the interests of the class without conflict of interest and there is a workable litigation plan.

[10] The settlement classes as set out in the Settlement Agreements are as follows:

Mastercard Settlement

All Merchants who, during the Class Period, accepted payments for the supply of goods or services by way of Mastercard Credit Cards, except the BC Mastercard Settlement Class, the Alberta Mastercard Settlement Class, the Saskatchewan Mastercard Settlement Class, the Quebec Mastercard Settlement Class, and Excluded Persons. For greater certainty, any legal person established for a private interest and any partnership resident in Quebec, which at any time between December 17, 2009 and December 17, 2010 had under its direction or control more than 50 persons bound to it by a contract of employment, and any legal person established for public interest resident in Quebec, shall be included in this Ontario Mastercard Settlement Class.

National Bank Settlement

All Canadian resident persons who, during the Class Period, accepted payments for the supply of goods or services by way of Visa Credit Cards pursuant to the terms of Merchant Agreements, except the BC Visa Settlement Class, the Alberta Visa Settlement Class, the Saskatchewan Visa Settlement Class, the Quebec Visa Settlement Class, and Excluded Persons. For greater certainty, any legal person established for a private interest and any partnership resident in Quebec, which at any time between December 17, 2009 and December 17, 2010 had under its direction or control more than 50 persons bound to it by contract of employment, and any legal person established for a public interest resident in Quebec, shall be included in this Ontario Visa Settlement Class.

All Canadian resident persons who, during the Class Period, accepted payments for the supply of goods or services by way of Mastercard Credit Cards pursuant to the terms of Merchant Agreements, except the BC Mastercard Settlement Class, the Alberta Mastercard Settlement Class, the Saskatchewan Mastercard Settlement Class, the Quebec Mastercard Settlement Class, and Excluded Persons. For greater certainty, any legal person established for a private interest and any partnership resident in Quebec, which at any time between December 17, 2009 and December 17, 2010 had under its direction or control more than 50 persons bound to it by contract of employment, and any legal person established for a public interest resident in Quebec, shall be included in this Ontario Mastercard Settlement Class.

Visa Settlement

All Merchants who, during the Class Period, accepted payments for the supply of goods or services by way of Visa Credit Cards, except the BC Visa Settlement Class, the Alberta Visa Settlement Class, the Saskatchewan Visa Settlement Class, the Quebec Visa Settlement Class, and Excluded Persons. For greater certainty, any legal person established for a private interest and any partnership resident in Quebec, which at any time between December 17, 2009 and December 17, 2010 had under its direction or control more than 50 persons bound to it by a contract of employment, and any legal person established for public interest resident in Quebec, shall be included in this Ontario Visa Settlement Class.

[11] The proposed Class Period under the Settlement Agreements is March 23, 2001 to the date of the first Final Order.

[12] The proposed common issues in the Settlement Agreements are as follows:

Mastercard Settlement:

Did the Settling Defendant conspire with others to fix, maintain, increase or control Merchant Discount Fees and/or Interchange Fees in Canada during the Class Period?

National Bank Settlement:

Did the Settling Defendant conspire with others to fix, maintain, increase or control Merchant Discount Fees and/or Interchange Fees paid by Merchants who accepted payment by Visa Credit Cards and/or Mastercard Credit Cards in Canada during the Class Period?

Visa Settlement:

Did the Settling Defendant conspire with others to fix, maintain, increase or control Merchant Discount Fees and/or Interchange Fees in Canada during the Class Period?

[13] Where certification is sought for the purposes of settlement, all the criteria for certification must still be met.[^4] However, compliance with the certification criteria is not as strictly required because of the different circumstances associated with settlements.[^5]

[14] In the immediate case, all the criterion for certification having been satisfied, I grant the Plaintiffs’ motion for certification as against Mastercard, National Bank, and Visa for settlement purposes.

[15] I further approve the notice and the notice plan.

Perell, J.

Released: January 30, 2018

COURT FILE NO.: CV-11-426591CP

DATE: 20180130

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JONATHON BANCROFT-SNELL and 1739793 ONTARIO INC.

Plaintiffs

– and –

VISA CANADA CORPORATION, MASTERCARD INTERNATIONAL INCORPORATED, BANK OF AMERICA CORPORATION, BANK OF MONTREAL, BANK OF NOVA SCOTIA, CANADIAN IMPERIAL BANK OF COMMERCE, CAPITAL ONE FINANCIAL CORPORATION, CITIGROUP INC., FEDERATION DES CAISSES DESJARDINS DU QUÉBEC, NATIONAL BANK OF CANADA INC., ROYAL BANK OF CANADA, and TORONTO-DOMINION BANK

Defendants

REASONS FOR DECISION

PERELL J.

Released: January 30, 2018

[^1]: S.O. 1992, c. 6. [^2]: R.S.C., 1985, c. C-34. [^3]: See: Bancroft-Snell v. Visa Canada Corporation, 2014 ONSC 5772, 2015 ONSC 7275, 2015 ONSC 7411, and 2016 ONSC 3635. [^4]: Baxter v. Canada (Attorney General) (2006), 2006 CanLII 41673 (ON SC), 83 O.R. (3d) 481 (S.C.J.) at para. 22. [^5]: Bellaire v. Daya, [2007] O.J. No. 4819 (S.C.J.) at para. 16; National Trust Co. v. Smallhorn, [2007] O.J. No. 3825 (S.C.J.) at para. 8; Nutech Brands Inc. v. Air Canada, [2008] O.J. No. 1065 (S.C.J.) at para. 9.