Stuart Glen Svonkin

The defendants, eight major financial institutions, successfully defended an appeal of a decision denying certification of a class action regarding mortgage contracts.

The defendants sought their costs of the appeal.

The plaintiffs argued that no costs should be awarded, asserting the proceeding was a test case and involved a matter of public interest under section 31(1) of the Class Proceedings Act.

The Divisional Court rejected the plaintiffs' arguments, finding the case was not a test case, did not raise a novel point of law, and was not a matter of public interest, but rather involved individual commercial mortgage contracts.

The court awarded the defendants modified partial indemnity costs fixed at $20,000 per defendant.

The appellants appealed the dismissal of their motions to certify eight separate class proceedings against various financial institutions.

The claims alleged that the respondents incorrectly interpreted mortgage provisions regarding partial prepayment rights and early discharge penalties.

The Divisional Court upheld the motion judge's decision, finding that the pleadings failed to disclose a cause of action as they relied on implied terms not supported by the express language of the mortgages.

The court also agreed that the proposed classes were overly broad, individual issues overwhelmed any common issues, and a class proceeding would be unmanageable and not the preferable procedure.