Sandhu et al. v. HSBC Finance Mortgages Inc. et al., 2016 BCCA 301

• Judge: Saunders, Garson and Fitch, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 12, 2016
• Jurisdiction: British Columbia
• Citations: 2016 BCCA 301;[2016] B.C.A.C. TBEd. JL.028

Sandhu v. HSBC Finance, [2016] B.C.A.C. TBEd. JL.028

MLB being edited

Currently being edited for B.C.A.C. - judgment temporarily in rough form.

Temp. Cite: [2016] B.C.A.C. TBEd. JL.028

Sandip Sandhu, Harinder Sandhu, Kirsten Simmons and Stephen Simmons (respondents/plaintiffs) v. HSBC Finance Mortgages Inc. and Household Trust Company (appellants/defendants)

(CA42380; 2016 BCCA 301)

Indexed As: Sandhu et al. v. HSBC Finance Mortgages Inc. et al.

British Columbia Court of Appeal

Saunders, Garson and Fitch, JJ.A.

July 8, 2016.

Summary:

The plaintiffs, the Sandhus and the Simmons, entered into mortgage agreements in respect to funds they borrowed from the defendants. The disclosure statements set out a mortgage title insurance premium and had no provision for legal fees. The litigation concerned the plaintiffs' complaint that monies they paid as title insurance premiums included undisclosed fees for legal services provided by a mortgage title insurance company. The causes of action included negligence, negligent misrepresentation, breach of contract, unjust enrichment, and breaches of various statutes. The plaintiffs applied to have the action certified as a class proceeding, and sought an order naming them as representative plaintiffs. The Sandhus, when unrepresented by counsel, had delivered a "without prejudice" letter offering to settle the action on payment to them of a significant sum.

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 2041, certified the action as a class proceeding, defined the class broadly as persons resident in British Columbia who paid a fee from their mortgage proceeds for title insurance in mortgage transactions with the defendants, named the four plaintiffs as representative plaintiffs, and certified 24 common issues. The judge held that the "without prejudice" letter was not admissible, and concluded that the Sandhus were appropriate representatives. The defendants appealed in respect to the certification and from the order naming the Sandhus as representative plaintiffs.

The British Columbia Court of Appeal concluded that the common issues should not have been certified on the pleadings presented, except for those relating to the claim under s. 172 of the Business Practices and Consumer Protection Act, and breach of contract (excluding the claim in respect to illegal contract), because they did not arise from claims that met the requirements of s. 4(1)(a) of the Class Proceedings Act. The question of satisfaction of s. 4(1)(c) and the damages issues were returned to the trial court. Further, the Court concluded that the judge erred in principle in appointing the Sandhus as representative plaintiffs.

Banks and Banking - Topic 1443

Liability of banks to customers - Duties of bank - Re mortgage or loan insurance coverage - See paragraphs 1 to 125.

Banks and Banking - Topic 8088

Trust and loan companies - Regulation - Mortgages - See paragraphs 1 to 125.

Consumer Law - Topic 5

General - Application of consumer protection legislation - See paragraphs 82 to 102.

Consumer Law - Topic 8

General - Interpretation of legislation - See paragraphs 82 to 102.

Consumer Law - Topic 1745

Sale of goods and services - Deceptive acts - Misleading conduct or representations - See paragraphs 82 to 93.

Consumer Law - Topic 2032

Contracts of credit - General provisions - Disclosure of interest rate and other charges - See paragraphs 1 to 125.

Consumer Law - Topic 2278

Contracts of credit - Consumer's remedies - For nondisclosure of charges and fees - See paragraphs 1 to 125.

Consumer Law - Topic 8145

Offences (incl. non-compliance) - Respecting business practices - Unfair practices, deceptive and unconscionable acts and practices (incl. representations) - See paragraphs 82 to 93.

Contracts - Topic 1541

Formation of contract - Duty to disclose - General - See paragraphs 105 to 108.

Evidence - Topic 3364

Documentary evidence - Judicial or administrative proceedings - Settlement documents - See paragraphs 25 to 31.

Evidence - Topic 3626

Documentary evidence - Private documents - Letters or documents written without prejudice - Settlement negotiations - See paragraphs 25 to 31.

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - See paragraphs 66 to 73.

Practice - Topic 208.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Aggregate damages - See paragraph 124.

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 paragraphs 44 to 125.

Practice - Topic 209.4

Persons who can sue and be sued - Class actions - Certification - Appointment or replacement of representative plaintiff - See paragraphs 25 to 43.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals - See paragraph 22.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters - Pleadings - See paragraphs 44 to 65, and 118.

Restitution - Topic 63

Unjust enrichment - General - Requirement of enrichment at plaintiff's expense - See paragraphs 109 to 114.

Restitution - Topic 102

Unjust enrichment - Bars - Statutory code - See paragraphs 99 to 102.

Trade Regulation - Topic 506

Competition - General - Civil remedy (Competition Act, s. 36) - See paragraphs 74 to 81.

Trade Regulation - Topic 645

Competition - Advertising - False or misleading representations (incl. advertising) - See paragraphs 74 to 81.

Counsel:

J.M. Sullivan, R.L. Reinertson and M.P. Good, for the appellants;

B.W. Lemer and R.W. Cooper, Q.C., for the respondents.

This appeal was heard at Vancouver, British Columbia, on January 12, 2016, before Saunders, Garson and Fitch, JJ.A., of the British Columbia Court of Appeal. In reasons written by Saunders, J.A., the Court delivered the following judgment, dated July 8, 2016.