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DECEPTIVE MARKETING - Legislation - Business Practices and Consumer Protection Act

Friday, November 03, 2017 @ 8:32 AM  

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Appeal by the defendant, Coast Capital Savings Credit Union, from certification of a class proceeding brought by the plaintiff, Finkel. The plaintiff alleged that the defendant levied undisclosed foreign exchange rate surcharges on foreign currency withdrawals made by members through automated teller machines outside of Canada. The plaintiff alleged that the surcharges were not disclosed in the defendant's standard form account agreement. The plaintiff sought restitution, compensatory and punitive damages, and interest and costs. The defendant submitted the claim was based on a misapprehension of the international payment system run by third party electronic network service providers. It denied levying the surcharges at issue and denied receiving any benefit from any such surcharge. A judge granted certification based on causes of action that included a breach of contract, and engagement of a deceptive act contrary to the Business Practices and Consumer Protection Act (BPCPA). The judge determined that the action raised suitable common issues, and that a class proceeding was the preferable procedure. The defendant appealed.

HELD: Appeal dismissed. The plaintiff's action did not involve reliance on an implied contractual term inconsistent with an express term in the defendant's member agreement. A full contextual analysis of the pleading demonstrated the requirement to interpret an express term of the member agreement in order to determine the merits of the claim. The certification judge did not err in finding the pleadings disclosed a cause of action based on a breach of the BPCPA. Although the broad interpretation of s. 171 of the BPCPA urged by the plaintiff was novel, it was not plain and obvious that the claims thereunder were bound to fail given the Act's broad consumer protection objectives. In certifying common issues, no palpable and overriding error was established with respect to finding the existence of a common contractual term, a common representation or the common imposition of a surcharge. The evidence, regardless of which entity was involved in the transaction or performed the conversion, demonstrated a factual basis for the existence of the impugned practice, however characterized. The individualized nature of the transactions did not preclude a finding of commonality with respect to the broader claims. No error arose from the conclusion that a class proceeding was the preferable procedure.

Finkel v. Coast Capital Savings Credit Union, [2017] B.C.J. No. 2073, British Columbia Court of Appeal, D.F. Tysoe, H. Groberman and G. Dickson JJ.A., October 20, 2017. Digest No. TLD-October302017009