The Marcotte case, a Quebec class action against
several financial institutions in relation to allegedly undisclosed
currency conversion fees, was the subject of recent reasons by the
Supreme Court of Canada. Our blog on that case is available
HERE. Marcotte is not alone: financial
institutions and the fees they charge, particularly where it may be
alleged that such fees have not been adequately disclosed, remain
big business for class actions plaintiffs.
In the recently released decision of Sandhu v. HSBC Finance
Mortgages Inc. et al (reasons available HERE), the British Columbia Supreme Court has
certified an action seeking damages or restitution from HSBC
Finance Mortgages Inc. and the Household Trust Company in relation
to title insurance fees.
The plaintiffs allege that when borrowers enter into a mortgage
commitment with the HSBC defendant, they authorize a variety of
fees relating to title insurance, variously described as a
"Premium", the "Policy Insurance Cost" and
"Additional Charges". The plaintiffs allege that
some of these fees are actually for undisclosed legal fees and
legal costs of the defendants.
The plaintiffs further allege that the provider of title
insurance charged a set premium for title insurance as well as a
set amount for legal fees, which amounts were not disclosed to the
borrowers; and that the defendants required the borrowers obtain
title insurance to obtain a residential mortgage. As a
result, the plaintiffs seek damages or restitution for breach of
contract, negligence and breaches of consumer protection
legislation, the Competition Act, the Financial Institutions Act,
the Trust and Loan Companies Act and the Mortgage Brokers Act.
In its reasons, the court noted that borrowers are able to make
other arrangements to provide the assurances regarding title as
required by the HSBC defendant, and that borrowers did sign an
acknowledgement that they were recommended to obtain independent
legal advice before signing the mortgage and that they could retain
a lawyer to act for them at any stage of the transaction.
Nonetheless, the court found that the procedural test for
certification was made out.
Despite recent good news on certification for B.C. class action
defendants, the weight of the authorities remains in favour of
certification. This appears particularly the case where
allegations of failure to disclose are made.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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