Markson v. MBNA Can. Bk.,

• Jurisdiction: Ontario
• Judge: Rosenberg, MacPherson and Rouleau, JJ.A.
• Neutral Citation: 2007 ONCA 334
• Citation: 2007 ONCA 334,(2007), 224 O.A.C. 71 (CA),85 OR (3d) 321,282 DLR (4th) 385,32 BLR (4th) 273,[2007] OJ No 1684 (QL),157 ACWS (3d) 29,224 OAC 71,43 CPC (6th) 10,282 D.L.R. (4th) 385,[2007] O.J. No 1684 (QL),224 O.A.C. 71,85 O.R. (3d) 321,(2007), 224 OAC 71 (CA)
• Date: 07 December 2006
• Court: Court of Appeal (Ontario)

Markson v. MBNA Can. Bk. (2007), 224 O.A.C. 71 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. MY.008

Stephen Markson (plaintiff/appellant) v. MBNA Canada Bank (defendant/respondent)

(C45191; 2007 ONCA 334)

Indexed As: Markson v. MBNA Canada Bank

Ontario Court of Appeal

Rosenberg, MacPherson and Rouleau, JJ.A.

May 2, 2007.

Summary:

The MBNA Canada Bank charged a $7.50 flat fee for cash advances on its MasterCard credit cards, plus periodic interest. Markson was an MBNA credit card holder. He alleged that MBNA had received interest on two cash advances obtained by him, in an amount that violated s. 347(1)(b) of the Criminal Code. Markson applied for certification of a proposed class proceeding against MBNA.

The Ontario Superior Court, in a decision reported at [2004] O.T.C. 692, dismissed the application. Markson appealed.

The Ontario Divisional Court, O'Driscoll, J., dissenting, dismissed the appeal. See 204 O.A.C. 94. Markson appealed. MBNA sought costs.

The Ontario Divisional Court, in a decision reported at 206 O.A.C. 30, declined to order costs of the appeal.

The Ontario Court of Appeal allowed Markson's appeal, holding that a class proceeding was not only the preferable procedure, but also the only viable procedure for remedying the alleged wrong and calling the alleged wrongdoer to account.

Criminal Law - Topic 1741

Offences against property - Criminal interest rate - General - The MBNA Canada Bank charged a $7.50 flat fee for cash advances on its MasterCard credit cards, plus periodic interest - Markson was an MBNA credit card holder - He alleged that MBNA had received interest on two cash advances obtained by him, in an amount that violated s. 347(1)(b) of the Criminal Code (i.e., exceeded 60%) - Markson applied for certification of a proposed class proceeding against MBNA - He sought three types of relief, being (i) a declaration that the MBNA's practice violated s. 347 and injunctive relief to stop it; (ii) damages for breach of contract and restitution for the amounts in excess of the permissible interest rate; and (iii) punitive damages - The Ontario Court of Appeal held that a class proceeding was not only the preferable procedure in this case, but the only viable procedure for remedying the alleged wrong and calling the alleged wrongdoer to account.

Criminal Law - Topic 1741

Offences against property - Criminal interest rate - General - The MBNA Canada Bank charged a $7.50 flat fee for cash advances on its MasterCard credit cards, plus periodic interest - Markson was an MBNA credit card holder - He alleged that MBNA had received interest on two cash advances obtained by him, in an amount that violated s. 347(1)(b) of the Criminal Code (i.e., exceeded 60%) - Markson applied for certification of a proposed class proceeding against MBNA - He sought, inter alia, a declaration that the MBNA's practice violated s. 347 and injunctive relief to stop it - The Ontario Court of Appeal stated that "It may be that some customers of the defendant would prefer that it continue to have the right to break the criminal law (if it is doing so), in order to offer its customers some added advantages. In this sense, allowing the plaintiff to pursue a class proceeding may be seen as unfair to some of the customers. In an organized society however, I do not see this as the kind of fairness concern that should prevent a court from intervening. Rather, the concern should be whether the defendant is acting in accordance with the law." - See paragraph 75.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - [See both Criminal Law - Topic 1741 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Section 24(1) of the Class Proceedings Act (CPA) listed three conditions for when the court could determine the aggregate or a part of a defendant's liability to class members and give judgment accordingly - The Ontario Court of Appeal held that at the certification stage the plaintiff only had to establish that there was a reasonable likelihood that the preconditions in s. 24(1) of the CPA would be satisfied and an aggregate assessment made if the plaintiffs were otherwise successful at a trial for common issues - See paragraph 44.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Section 24(1) of the Class Proceedings Act listed three conditions for when the court could determine the aggregate or a part of a defendant's liability to class members and give judgment accordingly - Condition (b) required that "no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant's monetary liability" - The Ontario Court of Appeal held that condition (b) was satisfied where potential liability could be established on a class-wide basis, but entitlement to monetary relief might depend on individual assessments - See paragraphs 46 to 48.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The MBNA Canada Bank charged a $7.50 flat fee for cash advances on its MasterCard credit cards, plus periodic interest - Markson was an MBNA credit card holder - He alleged that MBNA had received interest on two cash advances obtained by him, in an amount that violated s. 347(1)(b) of the Criminal Code (i.e., exceeded 60%) - Markson applied for certification of a proposed class proceeding against MBNA - He sought three types of relief, being (i) a declaration that MBNA's practice violated s. 347 and injunctive relief to stop it; (ii) damages for breach of contract and restitution for the amounts in excess of the permissible interest rate; and (iii) punitive damages - The Ontario Court of Appeal held that the goal of judicial economy favoured a class proceeding - The court stated that "Admittedly, maximum judicial economy will result if this action is not certified, in that no claim would be advanced at all. ... However, this result hardly strikes me as what the courts had in mind in terms of judicial economy. Moreover, it would be an overly rigid interpretation of the CPA and inconsistent with the instruction in Hollick ... that 'courts not take an overly restrictive approach to the legislation, but rather interpret the Act in a way that gives full effect to the benefits foreseen by the drafters.' ... judicial economy should focus on the relationship of the common issues to the other issues in the case." - See paragraphs 73 and 74.

Cases Noticed:

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.CR. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 5].

Degelder Construction Co. v. Dancorp Developments Ltd. et al., [1998] 3 S.C.R. 90; 231 N.R. 122; 113 B.C.A.C. 1; 184 W.A.C. 1, refd to. [para. 12].

Garland v. Consumers' Gas Co., [1998] 3 S.C.R. 112; 231 N.R. 1; 114 O.A.C. 1, refd to. [para. 12].

Carom et al. v. Bre-X Minerals Ltd. et al. (2000), 138 O.A.C. 55; 196 D.L.R.(4th) 344; 51 O.R.(3d) 236 (C.A.), leave to appeal denied (2001), 283 N.R. 399; 157 O.A.C. 399 (S.C.C.), refd to. [para. 30].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 247 D.L.R.(4th) 667; 73 O.R.(3d) 401 (C.A.), leave to appeal denied (2005), 344 N.R. 192 (S.C.C.), refd to. [para. 33].

Williams v. Mutual Life Assurance Co. of Canada et al. (2003), 170 O.A.C. 165; 226 D.L.R.(4th) 112 (C.A.), refd to. [para. 39].

Kumar v. Mutual Life Assurance Co. of Canada - see Williams v. Mutual Life Assurance Co. of Canada et al.

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 205 D.L.R.(4th) 39; 2001 SCC 69, refd to. [para. 39].

Chadha v. Bayer Inc. et al. (2003), 168 O.A.C. 143; 63 O.R.(3d) 22 (C.A.), leave to appeal refused (2003), 320 N.R. 399; 191 O.A.C. 397 (S.C.C.), refd to. [para. 39].

Serhan et al. v. Johnson & Johnson et al. (2006), 213 O.A.C. 298; 269 D.L.R.(4th) 279 (Div. Ct.), refd to. [para. 44].

Vezina et al. v. Loblaw Companies Ltd. et al., [2005] O.T.C. 365 (Sup. Ct.), agreed with [para. 44].

Gilbert v. Canadian Imperial Bank of Commerce, [2004] O.J. No. 4260 (Sup. Ct.), refd to. [para. 50].

Nantais v. Easyhome Ltd., [2005] O.J. No. 5805 (Sup. Ct.), refd to. [para. 51, footnote 4].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 54].

Pearson v. Inco Ltd. et al. (2005), 205 O.A.C. 30; 78 O.R.(3d) 641 (C.A.), leave to appeal refused (2006), 357 N.R. 394 (S.C.C.), refd to. [para. 55].

Healey v. Lakeridge Health Corp. et al., [2006] O.T.C. 981 (Sup. Ct.), refd to. [para. 59].

McCutcheon v. Cash Store Inc., [2006] O.J. No. 1860 (Sup. Ct.), refd to. [para. 60].

Nelson v. C.T.C. Mortgage Corp. (1984), 67 N.R. 162; 16 D.L.R.(4th) 139 (B.C.C.A.), affd. [1986] 1 S.C.R. 749; 67 N.R. 161, refd to. [para. 61].

Smith v. National Money Mart Co., [2007] O.J. No. 46 (Sup. Ct.), refd to. [para. 63].

Bodnar et al. v. Cash Store Inc. et al. (2006), 227 B.C.A.C. 109; 374 W.A.C. 109; 55 B.C.L.R.(4th) 53 (C.A.), refd to. [para. 63].

1176560 Ontario Ltd. et al. v. Great Atlantic & Pacific Co. of Canada Ltd., [2002] O.T.C. 963; 62 O.R.(3d) 535 (Sup. Ct.), affd. (2004), 184 O.A.C. 298 (Div. Ct.), refd to. [para. 68].

Hickey-Button v. Loyalist College of Applied Arts & Technology (2006), 211 O.A.C. 301; 267 D.L.R.(4th) 601 (C.A.), refd to. [para. 71].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 237 D.L.R.(4th) 385, refd to. [para. 75].

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. 6, sect. 24(1) [para. 38].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 47].

Ontario (Attorney General), Attorney General's Advisory Committee on Class Action Reform, Report of (1990), p. 15 [para. 74].

Ontario, Law Reform Commission, Report on Class Actions (1982), p. 572 [para. 53].

Counsel:

Linda Rothstein and Kirk M. Baert, for the appellant;

William G. Horton and Jill M. Lawrie, for the respondent.

This appeal was heard on December 7, 2006, by Rosenberg, MacPherson and Rouleau, JJ.A., of the Ontario Court of Appeal. Rosenberg, J.A., delivered the following decision for the court on May 2, 2007.