COURT FILE NO.: CV-11-426591
DATE: 20210511
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 CASSES DESJARDINS DU QUEBEC, NATIONAL BANK OF CANADA INC., ROYAL BANK OF CANADA, and TORONTO DOMINION BANK
Defendants
Luciana P. Brasil and Ruby Egit for the Plaintiffs.
Katherine L. Kay and Geoffrey Cowper, Q.C for the Defendants, Canadian Imperial Bank of Commerce, Bank of Montreal, Bank of Nova Scotia, Royal Bank of Canada, and Toronto-Dominion Bank.
Cynthia Spry for Class Member Wal-mart Canada Corp.
Proceeding under the Class Proceedings Act, 1992
HEARD: May 10, 2021
PERELL, J.
REASONS FOR DECISION
[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] 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.
[4] 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).
[5] In this motion, the Plaintiffs seek certification of the action as against: (1) Bank of Montreal; (2) Bank of Nova Scotia; (3) Canadian Imperial Bank of Commerce; (4) Royal Bank of Canada; and (5) Toronto-Dominion Bank for settlement purposes. The Plaintiffs also seek approval of the Notice of Certification and of the Settlement Approval Hearing and of the plan to disseminate the notice.
[6] Previously, settlements were approved with the Defendants: (1) Bank of America ($7.75 million); (2) Citigroup ($1.63 million); (3) Capital One ($4.25 million); (4) Desjardins ($9.9 million); (5) National Bank ($6.0 million); (6) Visa ($19.5 million) and (7) Mastercard ($19.5 million). These settlements have generated $68.5 million, the net proceeds of which are being held in trust by class counsel pending final resolution of all the Canadian proceedings.
[7] 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, Desjardins, National Bank, Visa, and Mastercard. I shall not repeat those facts, but I shall simply incorporate them by reference.[^3]
[8] The class proceedings have been litigated primarily through the British Columbia action. That action has an extensive litigation history, including a contested and appealed certification application, multiple rounds of settlements with several issuing banks, Visa, and Mastercard, and a number of procedural motions, many of which were appealed. The BC action was moving toward a trial with the remaining defendants and a 120-day trial was scheduled to begin in October 2020. On October 28, 2020 the parties entered into a settlement agreement.
[9] The Ontario Mastercard Settlement Class as set out in the Settlement Agreement is:
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 contract of employment, and any legal person established for a public interest resident in Quebec, shall be included in this Ontario Mastercard Settlement Class.
[10] The Ontario Visa Settlement Class is defined as:
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 contract of employment, and any legal person established for a public interest resident in Quebec, shall be included in this Ontario Visa Settlement Class.
[11] The proposed Class Period under the Settlement Agreement is March 23, 2001 to the date of the last order certifying or authorizing any of the Canadian Proceedings for settlement purposes.
[12] The proposed common issue in the Settlement Agreement is as follows:
Did the Settling Defendants conspire with each other and others to fix, maintain, increase or control Merchant Discount Fees and/or Interchange Fees in Canada during the Class Period?
[13] The Plaintiffs submit hat notice of the Settlement Agreement and opt out rights is necessary to protect the interests of class members and ensure fair conduct of the proceeding.
[14] The period to opt out of the Ontario Proceeding has already expired pursuant to this Court’s orders pronounced on August 6, 2015, February 16, 2016 and January 30, 2018, except for Ontario Settlement Class members who began accepting Visa and/or Mastercard credit cards after March 30, 2018. The plaintiffs propose that written elections to opt out by New Merchants be sent to Epiq Class Action & Claims Solutions, Inc. Epiq will provide counsel for all parties to the Settlement Agreement with copies of all valid elections to opt out that are received.
[15] 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.
[16] In the immediate case, the five requirements for certification are satisfied and the action should be certified as against the settling Defendants for the purpose of implementing the settlement agreement. The Notice and Plan of Dissemination meet the requirements set out in the Class Proceedings Act, 1992 and should also be approved.
[17] Order accordingly. I have signed the Order.
Perell, J.
Released: May 11, 2021
COURT FILE NO.: CV-11-426591
DATE: 20210511
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 CASSES DESJARDINS DU QUEBEC, NATIONAL BANK OF CANADA INC., ROYAL BANK OF CANADA, and TORONTO DOMINION BANK
Defendants
REASONS FOR DECISION
PERELL J.
Released: May 11, 2021
[^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, 2016 ONSC 3635; 2018 ONSC 706; 2018 ONSC 5166.