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Canadian Class Actions Monitor

British Columbia Court of Appeal upholds the certification of another undisclosed fees case

Posted in Certification, Class Actions
Robyn Gifford

As previously reported, inadequate fee disclosure cases continue to attract class actions in British Columbia, with the weight of authority favouring certification. In the recently released decision of Finkel v. Coast Capital Savings Credit Union, the British Columbia Court of Appeal upheld the certification of another such class action.[1]

Finkel involves undisclosed foreign currency charges. The plaintiff alleges that Coast Capital imposed additional surcharges on members who withdrew foreign currency from their personal accounts through ATMs outside Canada. The plaintiff claims that this additional surcharge breached Coast Capital’s contractual obligations and was a deceptive act or practice, contrary to the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 (“BPCPA”).

The British Columbia Supreme Court certified the claims.[2] On appeal, Coast Capital argued that the certification judge erred in that pleadings do not disclose a cause of action and the evidence does not support a finding that the claim raises common issues or that a class proceeding is the preferable procedure.

The Court rejected Coast Capital’s grounds of appeal. Of particular interest for undisclosed fee cases is the Court’s discussion of damages under s. 171 of the BPCPA. Section 171 requires a plaintiff to show that he or she has suffered loss or damage “due to” a contravention of the BPCPA. In a previous decision, the Court of Appeal held that a plaintiff must plead reliance to properly seek damages under s. 171.[3] In Finkel, however, the plaintiff advanced a much broader interpretation of s. 171, arguing that reliance was not required in every case. Instead, the plaintiff argued that the fact of a contractual breach was sufficient to link a statutory breach to the plaintiff’s loss.

The Court of Appeal held that it was not plain and obvious that such a claim was bound to fail. The Court observed that the proper interpretation of s. 171 has yet to be fully settled (despite prior jurisprudence on this topic).[4] The Court concluded it was at least arguable that a contractual breach can establish a causal link between a breach of the BPCPA and damages for the purposes of s. 171.[5] The Court also rejected Coast Capital’s remaining grounds of appeal, emphasizing the importance of deference when reviewing a certification judge’s assessment of the evidence supporting common issues and preferability.[6]

The Court of Appeal’s decision confirms the trend in favour of certification for undisclosed fees cases. The decision is also significant for its discussion of s. 171 and causation, in that it lowers the pleading standards for damages claimed under the BPCPA. Until the question of the proper interpretation of s. 171 is fully settled, it appears as though plaintiffs need not plead reliance when seeking certification of claims involving inadequate fee disclosure.

[1] 2017 BCCA 361 [Finkel].

[2] 2016 BCSC 561. See our previous blog post on the certification decision here.

[3] Sandhu v. HSBC Finance Mortgages Inc., 2016 BCCA 301 at para. 90.

[4] Finkel at paras. 77, 87.

[5] Finkel at paras. 84-85.

[6] Finkel at paras. 92-94, 104.