Law Times

www.lawtimesnews.com Page 16 February 4, 2008 / Law Times ONTARIO CIVIL CASES Civil Procedure CLASS ACTIONS Class action preferable in proceedings against bank by credit card holders Appellants appealed from dis- missal of certification motion pursuant to Class Proceedings Act, 1992 (Ont.). Underlying claim involved foreign currency transactions conducted with credit cards issued by respondent Toronto-Dominion Bank. Ap- pellants argued bank breached contract with holders of credit cards by charging undisclosed and unauthorized fess in respect of foreign currency transactions. Motion judge dismissed mo- tion to certify. Motion judge found that compensatory dam- ages could not be determined on class-wide basis and there- fore common issues requirement could not be met. Motion judge also concluded action did not meet preferable procedure re- quirement. Appeal to Divisional Court dismissed but further ap- peal to Ontario Court of Appeal allowed and motion for certifica- tion granted. Motion judge erred in concluding that determina- tion of compensatory damages unmanageable prospect because of need to assess how individual cardholders would have behaved had they known of allegedly un- disclosed fees. Error informed ultimate conclusion that action not appropriate for certification. Common issues trial judge could find it appropriate to conduct aggregate assessment of mon- etary relief. Determination of common issue related to breach of contract question would de- termine liability to all members of class with only possible re- maining issue being damages. Given conclusion that individual assessment of cardholder behav- iour not required to determine extent of liability, class proceed- ing clearly preferable procedure, particularly where aggregate as- sessment of damages possible. Even where aggregate assessment of damages not possible, class ac- tion still preferable. Cassano v. Toronto-Dominion Bank (Nov. 14, 2007, Ont. C.A., Winkler C.J.O., Rosenberg and Lang JJ.A., File No. C46542) Order No. 007/323/158 (26 pp.). Certification granted in pension plan action Applicant and respondent jointly sought order certifying proceed- ing, and if granted, approval of notice of certification and man- ner of service. Applicant spon- sored pension plan for its current and former employees. Respon- dents were members or former members of plan. Applicant was acquired by bank that admin- istered plan and majority of ac- tive members of plan became employees of bank and bank became participating employer under plan. Partial wind-up of plan occurred affecting mem- bers who were retired or termi- nated. Plan had accumulated large actuarial surplus. Applicant sought to wind up pension plan and distribute surplus to sharing group of individuals defined in an agreement. Respondents were acting as representative respon- dents for proposed class. Order granted. Requirements of Class Proceedings Act, 1992 (Ont.), were met. Act's requirements could be applied less stringently because certification was sought on consent in context of intend- ed settlement approval. National Trust Co. v. Smallhorn (Oct. 5, 2007, Ont.S.C.J., Lax J., File No. 07-CV-335151- CP) Order No. 007/283/109 (7 pp.). DISCOVERY Plaintiff ordered to provide fresh affidavit of documents Defendant brought motion for production in a mechanics lien action. Parties had agreed to complete an exchange of pro- ductions at pretrial. Defendant complained he did not have all of plaintiff 's productions. Plain- tiff insisted he had given all pro- ductions and that he was having trouble getting balance of them because they were in hands of ac- countants who were preparing fi- nancial statements. Plaintiff had agreed to order providing a fresh affidavit of documents. Defen- dant insisted on proceeding with motion. Motion allowed. Plain- tiff ordered to provide defendant with an itemized affidavit of documents. 1531081 Ontario Ltd. v. 6381090 Canada Inc. (Oct. 2, 2007, Ont.S.C.J., McCartney R.S.J., File No. CV-06-0290) Order No. 007/282/059 (3 pp.). Constitutional Law CHARTER OF RIGHTS Challenge to adoption disclosure provisions of Child and Family Services Act (Ont.) was properly dismissed Appellant was adopted as baby and she wanted to know identity of birth father. She unsuccess- fully tried to obtain information through disclosure provisions under Child and Family Services Act (Ont.). Appellant unsuccess- fully challenged constitutional- ity of Act's adoption disclosure provisions claiming that they violated rights under ss. 7 and 15 of Canadian Charter of Rights and Freedoms. Appeal dismissed. With respect to s. 15, application judge concluded that evidence did not support finding that rea- sonable person in position of ap- pellant would conclude that chal- lenged disclosure provisions were demeaning to claimant's dignity. Application judge's analysis was sound and review of evidentiary record supported analysis. Court agreed with application judge's analysis and conclusions on prin- ciples of fundamental justice component of s. 7 analysis. Marchand v. Ontario (Nov. 16, 2007, Ont. C.A., MacPherson, Blair and LaForme JJ.A., File No. C45673) Appeal from 149 A.C.W.S. (3d) 225; 81 O.R. (3d) 172; 142 C.R.R. (2d) 25 dis- missed. Order No. 007/323/160 (6 pp.). Contempt Of Court PUNISHMENT Lawyer ordered to serve four months on house arrest for breaching injunction prohibiting her from practising law Respondent was convicted of unauthorized practice of law, subjected to injunction prohib- iting her from practicing law, and found to be in contempt for breaching injunction. Law society sought penalty of four months' incarceration. Respondent sub- mitted that $5,000 fine would be appropriate penalty. Respondent ordered to house arrest for four months, prohibition from carry- ing on her paralegal business for four months, and terms of this order to be published. Court had wide discretion to impose usual criminal sanctions on individu- als found to be in civil contempt. Respondent repeatedly and knowingly violated court orders. No mitigating factors found. Ag- gravating factors included that respondent profited from her flagrant breaches and misled cli- ents with dishonesty. Penalty had to be more persuasive than past court orders and a fine. Financial cost of proceedings had not been a deterrent for respondent. Re- spondent ordered to pay costs of $35,000 within 60 days. Law Society of Upper Canada v. Boldt (Oct. 1, 2007, Ont.S.C.J., Hennessy J., File No. CV1695- 99) Order No. 007/283/098 (9 pp.). Contracts BUILDING CONTRACTS Home-builder entitled to recover moneys for unpaid work Plaintiff built home for defen- dant and brought action claim- ing balance of moneys owed un- der building contract. Defendant argued plaintiff failed to build home pursuant to contracts and failed to complete work in a good and workmanlike manner or at all. Defendant counterclaimed for costs to repair and complete her home. Defendant's home was damaged by fire and parties entered into an agreement which provided that plaintiff would furnish all materials and perform all work shown on drawings and described in specifications in ac- cordance with Ontario Building Code and town bylaws. Plaintiff argued that after a few months defendant would not allow him access to house to complete work and registered lien against it. De- fendant claimed house was not being built in accordance with agreement and eventually sold it. Claim and counterclaim allowed. Contract was poorly written and deficient in terms of any descrip- tion of completion of works. Case Law CaseLaw CaseLaw CaseLaw is a weekly summary of notable unreported civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. Single or multiple copies of the full text of any case digested in this issue can be obtained by: i) completing and mailing in the order form in this issue; or ii) calling CaseLaw's photocopy department at (905) 841-6472 in Toronto, (800) 263-3269 in Ontario and Quebec, or (800) 263-2037 in other provinces; or iii) faxing a copy of the completed order form to (905) 841-5085. 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