Watson v. Bank of America Corporation

Watson v. Bank of America Corporation

The Court held that unlawful means conspiracy and restitutionary claims deriving from that tort based on breaches of the Competition Act are not plainly bound to fail and may proceed to certification, but restitution in lieu of a s.36 claim for a bare statutory breach is barred by the statutory scheme as interpreted in Wakelam and cannot be advanced; claims predicated on the current s.45 were struck because the pleadings failed to allege conspirators who are competitors with respect to the pleaded product (credit card network services), the limitation and remedial structure of s.36 is significant, and certification otherwise was appropriate on common issues and methodology except that...

Citation
2015 BCCA 362
Parties
Plaintiff/appellant: Mary Watson (Coburn and Watson's Metropolitan Home dba Metropolitan Home); Defendant/respondent: Bank of America Corporation; Defendant/appellant: MasterCard International Incorporated; Defendant/appellant: Citigroup Inc.; Defendant/appellant: BMO Financial Group (Bank of Montreal); Defendant/appellant: National Bank of Canada Inc.; Defendant/appellant: Fédération des caisses Desjardins du Québec; Defendant/appellant: Bank of Nova Scotia; Defendant/appellant: Capital One Bank (Canada Branch); Defendant/appellant: Royal Bank of Canada; Defendant/appellant: Canadian Imperial Bank of Commerce; Defendant/appellant: Visa Canada Corporation; Defendant/appellant: The Toronto-Dominion Bank
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
19 August 2015
Procedural Posture
Class Action Certification and Strike Motions Arising From Alleged Competition and Tort Claims / Appeal From Supreme Court of British Columbia Certification and Striking Order to Court of Appeal (final Judgment on Certification and Pleadings)
Outcome
Appeal allowed in part for plaintiff and allowed in part for defendants; certification largely upheld but claim under current s.45 of Competition Act struck; unlawful means conspiracy reinstated; certification as to Fédération des caisses Desjardins du Québec set aside and remitted for fresh determination
Legal Topics
Certification Under Class Proceedings Act, Competition Act S.45 and S.36, Unlawful Means Conspiracy, Conspiracy to Injure, Unjust Enrichment, Waiver of Tort, Limitation Period S.36(4), Commonality and Preferability, Network Effects and Two Sided Markets, Disgorgement and Remedies
Source Language
English
Competition Law Class Actions Tort Law Equity and Restitution Civil Procedure Certification Under Class Proceedings Act Competition Act S.45 and S.36 Unlawful Means Conspiracy +7 more

Case Brief

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Parties

Mary Watson (Coburn and Watson's Metropolitan Home dba Metropolitan Home)

Plaintiff/appellant

Bank of America Corporation

Defendant/respondent

MasterCard International Incorporated

Defendant/appellant

Citigroup Inc.

Defendant/appellant

BMO Financial Group (Bank of Montreal)

Defendant/appellant

National Bank of Canada Inc.

Defendant/appellant

Fédération des caisses Desjardins du Québec

Defendant/appellant

Bank of Nova Scotia

Defendant/appellant

Capital One Bank (Canada Branch)

Defendant/appellant

Royal Bank of Canada

Defendant/appellant

Canadian Imperial Bank of Commerce

Defendant/appellant

Visa Canada Corporation

Defendant/appellant

The Toronto-Dominion Bank

Defendant/appellant

Procedural Posture

Class Action Certification and Strike Motions Arising From Alleged Competition and Tort Claims / Appeal From Supreme Court of British Columbia Certification and Striking Order to Court of Appeal (final Judgment on Certification and Pleadings)

Legal Issues

  1. 1 Whether unlawful means conspiracy and related restitutionary claims based on breaches of the Competition Act can be pleaded and certified
  2. 2 Whether the Competition Act and s.36 constitute an exhaustive remedial code excluding restitution in lieu of s.36 for simple statutory breaches
  3. 3 Whether the pleadings adequately allege s.45 offences (product, agreement, mens rea, undue lessening, co-conspirators) in both former and current s.45

Ratio Decidendi

The Court held that unlawful means conspiracy and restitutionary claims deriving from that tort based on breaches of the Competition Act are not plainly bound to fail and may proceed to certification, but restitution in lieu of a s.36 claim for a bare statutory breach is barred by the statutory scheme as interpreted in Wakelam and cannot be advanced; claims predicated on the current s.45 were struck because the pleadings failed to allege conspirators who are competitors with respect to the pleaded product (credit card network services), the limitation and remedial structure of s.36 is significant, and certification otherwise was appropriate on common issues and methodology except that...

Court Disposition

Appeal allowed in part for plaintiff and allowed in part for defendants; certification largely upheld but claim under current s.45 of Competition Act struck; unlawful means conspiracy reinstated; certification as to Fédération des caisses Desjardins du Québec set aside and remitted for fresh determination

Orders

  • Include 'unlawful means conspiracy' in certification order paragraph 10
  • Excise words 'conspiracy to commit an unlawful act' and substitute 'restitution in lieu of a claim under s. 36 for breach of ss. 45 and 61 of the Act' in paragraph 11 of the order