Bank of Montreal v. Marcotte et al., (2014) 462 N.R. 202 (SCC)

JudgeMcLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Wagner, JJ.
CourtSupreme Court (Canada)
Case DateFebruary 13, 2014
JurisdictionCanada (Federal)
Citations(2014), 462 N.R. 202 (SCC);2014 SCC 55

Bk. of Mtrl. v. Marcotte (2014), 462 N.R. 202 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2014] N.R. TBEd. SE.004

Bank of Montreal (appellant) v. Réal Marcotte, Bernard Laparé, Attorney General of Quebec and Président de l'Office de la protection du consommateur (respondents)

Citibank Canada (appellant) v. Réal Marcotte, Bernard Laparé, Attorney General of Quebec and Président de l'Office de la protection du consommateur (respondents)

Toronto-Dominion Bank (appellant) v. Réal Marcotte, Bernard Laparé, Attorney General of Quebec and Président de l'Office de la protection du consommateur (respondents)

National Bank of Canada (appellant) and Réal Marcotte, Bernard Laparé, Attorney General of Quebec and Président de l'Office de la protection du consommateur (respondents)

Réal Marcotte and Bernard Laparé (appellants) v. Bank of Montreal, Amex Bank of Canada, Royal Bank of Canada, Toronto-Dominion Bank, Canadian Imperial Bank of Commerce, Bank of Nova Scotia, National Bank of Canada, Laurentian Bank of Canada, Citibank Canada and Attorney General of Canada (respondents) and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Alberta, Président de l'Office de la protection du consommateur and Canadian Bankers Association (interveners)

(35009; 2014 SCC 55; 2014 CSC 55)

Indexed As: Bank of Montreal v. Marcotte et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Wagner, JJ.

September 19, 2014.

Summary:

This class action and two others were launched, seeking repayment of the conversion charges imposed by several credit card issuing financial institutions (banks) on credit card purchases made in foreign currencies primarily on the basis that the conversion charges violated Quebec's Consumer Protection Act (CPA). The representative plaintiffs were two individuals, Marcotte and Laparé. The banks argued that the CPA did not apply to them because of the federal jurisdiction over banking (Constitution Act, 1867, s. 91(15)), and that no repayment of the conversion charges was owed, regardless of the manner in which the conversion charge was disclosed in the credit card contracts. An issue also arose as to whether the representative plaintiffs had standing to sue banks with which they did not have a credit card.

The Quebec Superior Court, in a decision with neutral citation 2009 QCCS 2764, per Gascon, J., refused to dismiss the class action on the basis of standing. He rejected the banks' constitutional arguments that the CPA did not apply to them due to the doctrines of interjurisdictional immunity and paramountcy. He concluded that the conversion charges were "credit charges" within the meaning of s. 69 of the CPA. Different obligations flowed from whether the conversion charges were "credit charges" or "net capital". Gascon, J., found that five of the banks, the Bank of Montreal (BMO), National Bank of Canada (NBC), Citibank Canada, Toronto-Dominion Bank (TD) and Amex Bank of Canada (the "Group A banks"), failed to disclose the conversion charges contrary to the CPA. He ordered reimbursement of the conversion charges as provided for in s. 272 of the CPA, and ordered the Group A banks to pay $25 per class member as punitive damages for failing to disclose the conversion charge. The Group A banks appealed.

The Quebec Court of Appeal, in a decision with neutral citation 2012 QCCA 1396, upheld Gascon J.'s conclusion that the plaintiffs were adequate representative plaintiffs against all of the banks. The court agreed that neither interjurisdictional immunity nor paramountcy prevented the CPA from applying to the banks. The court considered that the conversion charges constituted "net capital" under the CPA and not credit charges. The Group A banks were found to have breached both the CPA and the Civil Code of Québec (CCQ) by not disclosing the conversion charge to cardholders. The banks were ordered to repay the conversion charges as outlined by the trial judge. However, punitive damages were only awarded against the TD in light of its failure to provide evidence that would have permitted collective recovery. The punitive damages against the other Group A banks were overturned because collective recovery already had an important punitive aspect and ordering punitive damages would serve no preventive purpose. Four of the Group A banks appealed, arguing that the Court of Appeal erred in its conclusion that interjurisdictional immunity and paramountcy did not apply, that the conversion charges imposed by the Group A banks should be reimbursed, and that the plaintiffs had standing against all of the banks. The representative plaintiffs also appealed.

The Supreme Court of Canada held that all relevant provisions of the CPA were constitutionally applicable and operative and the representative plaintiffs had standing to bring the class action against all the banks. The conversion charges were "net capital" in the sense of the CPA and were properly disclosed by the other banks involved (the Group B banks). However, the Group A banks failed to disclose the conversion charges and had to, therefore, refund the collected conversion charges to their cardholders. They were additionally liable for punitive damages as determined by the trial judge. In the result, the banks' appeals were dismissed. The plaintiffs' appeal was allowed in part.

Banks and Banking - Topic 712

Duties of banks - General - Duty re credit cards (incl. disclosure requirements) - [See second Constitutional Law - Topic 2511 , Constitutional Law - Topic 3504 and all Creditors and Debtors - Topic 1408 ].

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - The Supreme Court of Canada stated that "... Interjurisdictional immunity operates to prevent laws enacted by one level of government from impermissibly trenching on the 'unassailable core' of jurisdiction reserved for the other level of government ..." - See paragraph 62.

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - Class actions were launched seeking repayment of the conversion charges imposed by several credit card issuing financial institutions on credit card purchases made in foreign currencies because the charges violated Quebec's Consumer Protection Act (CPA) - The banks claimed that the doctrine of interjurisdictional immunity rendered the CPA inapplicable to their credit card activities because the application of s. 12 (the disclosure provision) and s. 272 (the remedy provision) would impair the core federal banking power (Constitution Act, s. 91(15)) - The Supreme Court of Canada held that the doctrine of interjurisdictional immunity did not apply - The provisions at issue could not be said to significantly trammel or impair the manner in which the federal power over banks could be exercised; therefore, the doctrine of interjurisdictional immunity was not engaged - See paragraphs 62 to 69.

Constitutional Law - Topic 2511

Determination of validity of statutes or Acts - General principles - Interjurisdictional immunity - The Supreme Court of Canada stated that "While interjurisdictional immunity remains an extant constitutional doctrine, this Court has cautioned against excessive reliance on it. A broad application of the doctrine is in tension with the modern cooperative approach to federalism which favours, where possible, the application of statutes enacted by both levels of government. As such, this Court in Canadian Western Bank v. Alberta, 2007 ... held that the doctrine must be applied 'with restraint' and 'should in general be reserved for situations already covered by precedent' ... In the rare circumstances in which interjurisdictional immunity applies, a provincial law will be inapplicable to the extent that its application would 'impair' the core of a federal power. Impairment occurs where the federal power is 'seriously or significantly trammel[ed]', particularly in our 'era of cooperative, flexible federalism': Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC ..." - See paragraphs 63 and 64.

Constitutional Law - Topic 3501

Paramountcy of federal statutes - General principles - The Supreme Court of Canada stated that "Paramountcy is engaged where there is a conflict between valid provincial and federal law. In such cases, the federal law prevails, and the provincial law is rendered inoperative to the extent of the conflict. Conflict can be established by impossibility of dual compliance or by frustration of a federal purpose ..." - See paragraph 70.

Constitutional Law - Topic 3504

Paramountcy of federal statutes - General principles - Requirement of conflict or repugnancy - Class actions were launched seeking repayment of the conversion charges imposed by several credit card issuing financial institutions on credit card purchases made in foreign currencies because the charges violated Quebec's Consumer Protection Act (CPA) - The banks claimed that the doctrine of federal paramountcy rendered s. 12 (the disclosure provision) and s. 272 (the remedy provision) of the CPA inoperative - The banks argued that there was a conflict between federal and provincial law because the provisions of the CPA frustrated the purpose of the federal banking scheme - The Supreme Court of Canada held that the doctrine of paramountcy was not engaged - See paragraphs 70 to 84.

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - [See Constitutional Law - Topic 3504 ].

Constitutional Law - Topic 6161

Federal jurisdiction (s. 91) - Banking - General - [See second Constitutional Law - Topic 2511 and Constitutional Law - Topic 3504 ].

Consumer Law - Topic 2032

Contracts of credit - General provisions - Disclosure of interest rate and other charges - [See all Creditors and Debtors - Topic 1408 ].

Consumer Law - Topic 2276

Contracts of credit - Consumer's remedies - Nullity of contract - When available - [See third Creditors and Debtors - Topic 1408 ].

Consumer Law - Topic 2278

Contracts of credit - Consumer's remedies - For nondisclosure of charges and fees - [See third and fourth Creditors and Debtors - Topic 1408 ].

Consumer Law - Topic 8145

Offences (incl. non-compliance) - Respecting business practices - Unfair practices, deceptive and unconscionable acts and practices (incl. representations) - [See fourth Creditors and Debtors - Topic 1408 ].

Creditors and Debtors - Topic 1408

Credit cards - General - Cardholder agreements (incl. disclosure agreements) - Conversion charges - A class action was authorized, respecting repayment of the conversion charges imposed by several credit card issuing financial institutions on credit card purchases made in foreign currencies primarily on the basis that the conversion charges violated Quebec's Consumer Protection Act (CPA) - At issue was whether the conversion charges were "net capital" within the meaning of s. 68 of the CPA or "credit charges" within the meaning of s. 69 - Different obligations arose depending on the classification - The Supreme Court of Canada held that based on a proper interpretation of the statutory provisions in issue, the conversion charges qualified as "net capital" under s. 68 - See paragraphs 48 to 61.

Creditors and Debtors - Topic 1408

Credit cards - General - Cardholder agreements (incl. disclosure agreements) - Conversion charges - A trial judge determined that five banks (Group A banks) failed to disclose to credit cardholders conversion charges on purchases made in foreign currencies as required by s. 12 of the Quebec Consumer Protection Act (CPA) - The ruling was upheld on appeal - The banks appealed again - The Supreme Court of Canada held that the banks failed to demonstrate any palpable and overriding error for the judge's conclusions of fact that the Group A banks breached s. 12 of the CPA by failing to disclose the conversion charge - See paragraphs 85 and 86.

Creditors and Debtors - Topic 1408

Credit cards - General - Cardholder agreements (incl. disclosure agreements) - Conversion charges - A trial judge determined that five banks (Group A banks) failed to disclose conversion charges on purchases made in foreign currencies to cardholders as required by s. 12 of the Quebec Consumer Protection Act (CPA) - He ordered reimbursement of the conversion charges to cardholders (s. 272) and ordered the Group A banks to pay $25 per class member as punitive damages - The banks appealed, arguing that s. 271 of the CPA, not s. 272 should apply to their breach of s. 12 - Section 271 provided the additional civil remedies of nullity of contract or the restoration of improperly imposed credit charges - However, if s. 271 applied, punitive damages would not be available and the banks would have the chance to prove that the reimbursement was not warranted because the credit cardholders suffered no prejudice - The Supreme Court of Canada determined that only s. 272 applied to the breach of s. 12 of the CPA in this case - See paragraphs 87 to 94.

Creditors and Debtors - Topic 1408

Credit cards - General - Cardholder agreements (incl. disclosure agreements) - Conversion charges - A trial judge determined that five banks (Group A banks) failed to disclose conversion charges on purchases made in foreign currencies to cardholders as required by s. 12 of the Quebec Consumer Protection Act (CPA) - He ordered reimbursement of the conversion charges to cardholders and awarded $25 per class member as punitive damages (s. 272) - The appeal court agreed that the conversion charges should be repaid, but set aside the punitive damage award against all but one of the banks - On a further appeal, the banks argued that the appeal court correctly set aside the punitive damages award - The Supreme Court of Canada disagreed - There was no basis for the court of appeal to interfere with the trial court's assessment of punitive damages - Further, it was open to the trial judge to conclude that the Group A banks breached their responsibilities in contravention of the CPA and its objectives - There was a rational connection between the amount of punitive damages and the purpose for which they were awarded - The trial judge made no palpable and overriding error in awarding punitive damages as a preventive measure, not only to deter the banks, but all merchants, from this kind of careless behaviour - See paragraphs 95 to 99.

Damage Awards - Topic 2029.2

Exemplary or punitive damages - Breach of statutory duty - Breach of disclosure requirements in consumer protection legislation - [See fourth Creditors and Debtors - Topic 1408 ].

Damages - Topic 1306.2

Exemplary or punitive damages - Consumer protection legislation - [See fourth Creditors and Debtors - Topic 1408 ].

Practice - Topic 208

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - For damages - The two individual representative plaintiffs in a class action sought repayment of conversion charges imposed by several credit card issuing banks on foreign currency credit card purchases, alleging a violation of Quebec's Consumer Protection Act - The banks argued that the representative plaintiffs lacked standing to sue banks with which they did not have a credit card - The Supreme Court of Canada held that the representative plaintiffs had standing to sue all the banks - Under certain circumstances, the law permitted a collective action where the representative did not have a direct cause of action against, or a legal relationship with, each defendant - The court noted that its flexible approach to authorization in recent jurisprudence supported a proportional approach to class action standing that economized judicial resources and enhanced access to justice - It was inappropriate that different outcomes might result depending on when standing was challenged - See paragraphs 29 to 47.

Practice - Topic 208

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - For damages - The Supreme Court of Canada stated that "Standing in the context of class actions must be analyzed through the lens of the criteria for authorization of class actions set out in the CCP [Code of Civil Procedure]. That analysis must have the same outcome regardless of whether it is conducted before or after the class action is authorized. As stated above, determining whether art. 55 of the CCP is satisfied requires interpreting that provision harmoniously with the class action authorization criteria of art. 1003 in order to take into account the collective nature of class actions. The nature of the interest necessary to establish the standing of the representative must be understood from the perspective of the common interest of the proposed class, and not solely from the perspective of the representative plaintiffs. The legal principles that govern a challenge to standing should be the same whether the challenge occurs at the authorization stage or at the merits stage, because, at both stages, the court must look to the authorization criteria of art. 1003 to resolve the issue ..." - See paragraph 42.

Practice - Topic 208

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - For damages - The Supreme Court of Canada stated that "Nothing in the nature of class actions or the authorization criteria of art. 1003 [of the Code of Civil Procedure (CPP)] requires representatives to have a direct cause of action against, or a legal relationship with, each defendant in the class action. The focus under art. 1003 of the CCP is on whether there are identical, similar or related questions of law or fact; whether there is someone who can represent the class adequately; whether there are enough facts to justify the conclusion sought; and whether it is a situation that would be difficult to bring with a simple joinder of actions under art. 67 of the CCP or via mandatary under art. 59 of the CCP. As noted in Infineon Technologies AG v. Option consommateurs, 2013 SCC ..., this Court has given a broad interpretation and application to the requirements for authorization, and 'the tenor of the jurisprudence clearly favours easier access to the class action as a vehicle for achieving the twin goals of deterrence and victim compensation' (para. 60). Article 1003(d) still requires the representative plaintiff to be 'in a position to represent the members adequately'. Under this provision, the court has the authority to assess whether a proposed representative plaintiff could adequately represent members of a class against defendants with whom he would not otherwise have standing to sue" - See paragraph 43.

Practice - Topic 8802

Appeals - General principles - Duty of appellate court regarding damage awards by a trial judge - [See fourth Creditors and Debtors - Topic 1408 ].

Quebec Procedure - Topic 9031

Class action - Authorization to institute class action - Representative member in a position to represent the members adequately (incl. standing) - [See all Practice - Topic 208 ].

Cases Noticed:

Marcotte v. Fédération des caisses Desjardins du Québec (2014), 462 N.R. 296; 2014 SCC 57, refd to. [para. 2].

Amex Bank of Canada v. Adams et al. (2014), 462 N.R. 277; 2014 SCC 56, refd to. [para. 2].

Bouchard v. Agropur Coopérative, [2006] R.J.Q. 2349; 2006 QCCA 1342, overruled [para. 29].

CHSLD Christ-Roy (Centre hospitalier, soins longue durée) v. Comité provincial des malades, [2007] R.J.Q. 1753; 2007 QCCA 1068, refd to. [para. 30].

MacKinnon v. National Money Mart Co. et al. (2004), 203 B.C.A.C. 85; 332 W.A.C. 85; 33 B.C.L.R.(4th) 21; 2004 BCCA 472, refd to. [para. 33].

Service aux marchands détaillants ltée (Household Finance) v. Option consommateurs, 2006 QCCA 1319, leave to appeal refused, [2007] 1 S.C.R. xi, refd to. [para. 35].

Imperial Tobacco Canada Ltd. v. Conseil québécois sur le tabac et la santé, 2007 QCCA 694, refd to. [para. 40].

General Motors du Canada ltée v. Billette, [2010] R.J.Q. 66; 2009 QCCA 2476, refd to. [para. 40].

Infineon Technologies AG et al. v. Option consommateurs et al., [2013] 3 S.C.R. 600; 450 N.R. 355; 2013 SCC 59, refd to. [para. 43].

Dell'Aniello v. Vivendi Canada Inc., [2014] 1 S.C.R. 3; 453 N.R. 150; 2014 SCC 1, refd to. [para. 44].

Marcotte et al. v. Longueuil (Ville), [2009] 3 S.C.R. 65; 394 N.R. 1; 2009 SCC 43, refd to. [para. 44].

Richard v. Time Inc. et al., [2012] 1 S.C.R. 265; 427 N.R. 203; 2012 SCC 8, appld. [para. 55].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 63].

Quebec (Attorney General) v. Canadian Owners and Pilots Association, [2010] 2 S.C.R. 536; 407 N.R. 102; 2010 SCC 39, dist. [para. 64].

Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113; 276 N.R. 339; 157 B.C.A.C. 161; 256 W.A.C. 161; 2001 SCC 67, refd to. [para. 71].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [para. 78].

Bank of Montreal v. Hall, [1990] 1 S.C.R. 121; 104 N.R. 110; 82 Sask.R. 120, refd to. [para. 80].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 80].

Cinar Corp. et al. v. Robinson et al., [2013] 3 S.C.R. 1168; 452 N.R. 123; 2013 SCC 73, refd to. [para. 98].

Statutes Noticed:

Bank Act, S.C. 1991, c. 46, preamble [para. 78]; sect. 16, sect. 988 [para. 82].

Civil Code of Québec, art. 1621 [para. 100].

Code of Civil Procedure, C.Q.L.R., c. C-25, art. 4.2 [para. 31]; art. 55 [para. 29]; Book IX, [para. 31]; art. 59 [para. 29]; art. 1003(a), art. 1003(d) [para. 32]; art. 1015 [para. 35]; art. 1048 [para. 34]; art. 1051 [para. 32].

Constitution Act, 1867, sect. 91(15) [para. 62].

Consumer Protection Act, C.Q.L.R., c. P-40.1, sect. 12 [para. 65]; sect. 68, sect. 69, sect. 70 [para. 49]; sect. 271 [para. 88]; 272 [para. 65].

Authors and Works Noticed:

Bulmer, John, Payment Systems: The Credit Card Market in Canada (September 2009) (online: http://www.parl.gc.ca/content/lop/ researchpublications/prb0910-e.pdf), generally [para. 5 ].

Masse, Claude, Loi sur la protection du consommateur: Analyse et commentaires (1999), p. 418 [para. 58].

Counsel:

Mahmud Jamal, Sylvain Deslauriers, Silvana Conte, Alberto Martinez, W. David Rankin, Anne-Marie Lizotte and Alexandre Fallon, for the appellants/respondents, the Bank of Montreal, Citibank Canada, the Toronto-Dominion Bank and the National Bank of Canada and for the respondents the Amex Bank of Canada, the Royal Bank of Canada, the Canadian Imperial Bank of Commerce, the Bank of Nova Scotia and the Laurentian Bank of Canada.

Bruce W. Johnston, Philippe H. Trudel, André Lespérance and Andrew E. Cleland, for the respondents/appellants, Réal Marcotte and Bernard Laparé;

Jean-François Jobin, Francis Demers and Samuel Chayer, for the respondent/intervener, the Attorney General of Quebec;

Marc Migneault and Joël Simard, for the respondent/intervener, Président de l'Office de la protection du consommateur;

Bernard Letarte and Pierre Salois, for the respondent/intervener, the Attorney General of Canada;

Janet E. Minor and Robert A. Donato, for the intervener, the Attorney General of Ontario;

Robert J. Normey, for the intervener, the Attorney General of Alberta;

John B. Laskin and Myriam M. Seers, for the intervener, the Canadian Bankers Association.

Solicitors of Record:

Osler, Hoskin & Harcourt, Montreal, Quebec, and Toronto, Ontario; Deslauriers & Cie, Montreal, Quebec, for the appellants/respondents, the Bank of Montreal, Citibank Canada, the Toronto-Dominion Bank and the National Bank of Canada and for the respondents, the Amex Bank of Canada, the Royal Bank of Canada, the Canadian Imperial Bank of Commerce, the Bank of Nova Scotia and the Laurentian Bank of Canada;

Trudel& Johnston, Montreal, Quebec; Lauzon Bélanger Lespérance inc., Montreal, Quebec, for the respondents/appellants, Réal Marcotte and Bernard Laparé;

Bernard, Roy& Associés, Montreal, Quebec, for the respondent/intervener, the Attorney General of Quebec;

Allard, Renaud et Associés, Trois-Rivieres, Quebec; Office de la protection du consommateur, Trois-Rivieres, Quebec, for the respondent/intervener, Président de l'Office de la protection du consommateur;

Attorney General of Canada, Montreal, Quebec, for the respondent/intervener, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Attorney General of Alberta, Edmonton, Alberta, for the intervener, the Attorney General of Alberta;

Torys, Toronto, Ontario, for the intervener, the Canadian Bankers Association.

This appeal was heard on February 13, 2014, before McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver and Wagner, JJ., of the Supreme Court of Canada. The following joint reasons for judgment were delivered for the court on September 19, 2014, by Rothstein and Wagner, JJ.

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109 practice notes
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    ...2014 SCC 1, [2014] 1 S.C.R. 3; Bank of Montreal v. Bail Ltée, [1992] 2 S.C.R. 554; referred to: Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725; Theratechnologies inc. v. 121851 Canada inc., 2015 SCC 18, [2015] 2 S.C.R. 106; Transport TFI 6 v. Espar inc., 2017 QCCS 6311; Beau......
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  • Desjardins Financial Services Firm Inc. v. Asselin, 2020 SCC 30
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    ...3 S.C.R. 635 ; Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44 , [2013] 3 S.C.R. 53 ; Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725 ; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161 ; M & D Farm Ltd. v. Manitoba Agricultural Credit Corp., [19......
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    • Irwin Books The Canadian Class Action Review No. 13-2, March 2018
    • March 1, 2018
    ...beliefs to arrive at the same assessment of the likely costs and benefits of lawsuits such as these.112 109 Bank of Montreal v Marcotte, 2014 SCC 55 at para 45. See also para 47: “This Court’s flexible approach to authorization in Infineon and Vivendi supports a proportional approach to cla......
  • Class Proceedings and the Future of Boilerplate in Consumer Contracts: Unconscionability as a Common Law Solution to Class Action Avoidance
    • Canada
    • Irwin Books The Canadian Class Action Review No. 13-2, March 2018
    • March 1, 2018
    ...beliefs to arrive at the same assessment of the likely costs and benefits of lawsuits such as these.112 109 Bank of Montreal v Marcotte, 2014 SCC 55 at para 45. See also para 47: “This Court’s flexible approach to authorization in Infineon and Vivendi supports a proportional approach to cla......
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