Canada: Foreign Exchange Class Action Certified

Court of Appeal for Ontario grants certification in Cassano v. TD Bank

The acceptance of aggregate assessment of damages pursuant to s. 24(1) of the Class Proceedings Act (CPA) as a common issue is now more firmly entrenched as a result of the Court of Appeal for Ontario's recent decision certifying a class action in Cassano v. The Toronto-Dominion Bank.

Brought on behalf of all credit-card holders who had been charged fees in respect of foreign currency transactions on their credit cards, the claim alleges that the TD Bank had failed to disclose two of the fees - a "conversion fee" and an "issuer fee" - in breach of the Banking Agreements with the cardholders. The Bank argued that the terms of the Banking Agreements provided them with a broad discretion to determine exchange rates to be applied. At the certification motion, Justice Cullity had refused certification because he held that the proposed proceeding did not meet the "preferable procedure" requirement for class actions (nor could the common issue as to damages be certified).

Justice Cullity concluded that the plaintiffs were seeking only compensatory damages (damages intended to put the plaintiffs in the position they would have been in, but for the breach) as opposed to restitutionary damages (or damages meant to disgorge the breaching party of profits, available only where compensatory damages would be inadequate). Because the compensatory damages determination would require a "but for the breach" analysis, Justice Cullity agreed with the defendants that an assessment of what each cardholder would have done had they been informed of the charges would be required. He concluded that what the cardholders were deprived of was the value of the choice each of them could have made to reconsider the use of their credit cards in light of the fees, had they known about them and been concerned about the costs involved.

As a result, Justice Cullity held that certification would only be appropriate if compensatory damages could be determined on a class wide basis, and in his view they could not (nor could they be aggregated pursuant to section 24(1) of the Class Proceedings Act) because the determination of the extent of each class member's loss would require proof on an individual basis of how each member of the class would use his or her credit card had they known of the fees that applied to foreign currency transactions.

The Divisional Court upheld Justice Cullity's decision and refused to certify the proceeding. In particular, the Divisional Court agreed with Justice Cullity's conclusion that the damages assessment flowing from the alleged breaches of contract would require an individual analysis of what each class member would have done had there been disclosure.

The Court of Appeal for Ontario, in a ruling authored by Chief Justice Winkler, overturned the previous decisions and certified the action. Justice Winkler disagreed with the Bank's position that there were insufficient common issues as to damages and, by extension, that a class proceeding would not be a preferable procedure. He identified as a preliminary problem the fact that Justice Cullity's conclusion with respect to the assessment of damages rested on the application of a line of contract-law cases, which provide that where a contract has alternate modes of performance, the breaching party is entitled to assume that the non breaching party would have chosen the mode most beneficial to the breaching party. In this case, the Court of Appeal concluded there were really no alternate modes of performing the contract.

Chief Justice Winkler proceeded to consider the recent Court of Appeal decision in Markson v. MBNA Bank (discussed in our August 15, 2007 Class Action Update), in which the Court accepted that section 24(1) of the CPA could be used to determine damages as a common issue and circumvent any complaint of individual assessments. Section 24(1) sets out certain criteria that must be met before a judge can "determine the aggregate or a part of the defendant's liability to class members and give judgment accordingly." One of the criteria is that "the aggregate or a part of the defendant's liability to some or all class members can reasonably be determined without proof by individual class members." Justice Winkler relied on the proposition from Markson v. MBNA Bank that so long as there is a "reasonable likelihood" that this condition would be satisfied, the Court could add damages as a common issue. He dismissed out of hand the defendant's argument that the cost of producing the information required to prove any damages would be prohibitively expensive, noting that the Court could resort to Section 23 to permit statistical sampling to determine average damages, in place of a case-by-case assessment.

Justice Winkler also concluded that even if damages had to be assessed on an individual basis, a class proceeding would nevertheless be the preferable procedure, since access to justice and judicial economy would still be advanced, and since a finding that there was a breach of contract would significantly advance the claims of all class members. Justice Winkler went on to note that the CPA is a "powerful procedural mechanism" in litigation and that the fact that damages cannot be aggregated should not be fatal to certification, since the CPA contemplates the assessment of individual damages where appropriate.

While Cassano may be distinguished from other cases where aggregate assessments of damages are sought, because of the nature of the contract in that case and the fact that the fees paid by each cardholder should be readily determinable by the Bank, the fact remains that the continued application of s. 24(1) of the CPA as a means to facilitate certification is a troubling (continued) development. The "high water" mark for defendants of the Court of Appeal's decision in Chada v. Bayer in respect of the interpretation of s. 24(1) - where the Court of Appeal limited the application of that section at the certification stage - appears almost unreachable, unless and until the Supreme Court of Canada weighs in on the issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.