Cassano v. The Toronto-Dominion Bank

Cassano v. The Toronto-Dominion Bank

The Court of Appeal allowed the appeal and certified the class: the central common issue (whether TD breached the standard cardholder agreement by charging undisclosed conversion and issuer fees) can be determined class-wide by interpreting standard documents; the aggregate quantum of damages can reasonably be determined by resort to TD's records or by CPA mechanisms (s.24, s.25, s.26) and individual subjective inquiries are not a prerequisite to certification; therefore a class proceeding is the preferable and appropriate procedure and the certification motion should be granted with recast common issues.

Citation
2007 ONCA 781
Parties
Plaintiff (appellant): Paul Cassano; Plaintiff (appellant): Benjamin Bordoff; Defendant (respondent): The Toronto-Dominion Bank
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
14 November 2007
Procedural Posture
Class Proceeding Certification Appeal / Court of Appeal Decision on Certification (appeal)
Outcome
Appeal allowed; orders of the Divisional Court and motion judge set aside; motion for certification granted
Legal Topics
Certification, Common Issues Under S.5(1) CPA, Preferable Procedure, Aggregate Damages Under S.24 CPA, Contract Interpretation, Damages Assessment, Distribution of Damages
Source Language
English
Civil Class Actions Contract Law Banking Law Procedural Law Certification Common Issues Under S.5(1) CPA Preferable Procedure +4 more

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Parties

Paul Cassano

Plaintiff (appellant)

Benjamin Bordoff

Plaintiff (appellant)

The Toronto-Dominion Bank

Defendant (respondent)

Procedural Posture

Class Proceeding Certification Appeal / Court of Appeal Decision on Certification (appeal)

Legal Issues

  1. 1 Whether TD breached standard cardholder agreements by charging undisclosed conversion and issuer fees for foreign currency transactions
  2. 2 Whether the claims raise common issues under s.5(1)(c) of the CPA
  3. 3 Whether a class proceeding is the preferable procedure under s.5(1)(d) of the CPA

Ratio Decidendi

The Court of Appeal allowed the appeal and certified the class: the central common issue (whether TD breached the standard cardholder agreement by charging undisclosed conversion and issuer fees) can be determined class-wide by interpreting standard documents; the aggregate quantum of damages can reasonably be determined by resort to TD's records or by CPA mechanisms (s.24, s.25, s.26) and individual subjective inquiries are not a prerequisite to certification; therefore a class proceeding is the preferable and appropriate procedure and the certification motion should be granted with recast common issues.

Court Disposition

Appeal allowed; orders of the Divisional Court and motion judge set aside; motion for certification granted

Orders

  • Order granting certification of the proposed class proceeding
  • Common issues recast as: 1) Was TD in breach of the standard Cardholder Agreement by charging the conversion fee and issuer fee during the class period? 2) If so, are there compensatory damages? 3) Can compensatory damages be determined on an aggregate basis; if so, amount and distribution? 4) Liability for punitive...