Case information

Civil procedure — Class actions — Appeals — Legislation — Interpretation — Courts —Jurisdiction — What principles should a court apply in deciding whether to approve a class settlement — Can class members appeal an order approving a class settlement — Can a class settlement resolve rights beyond the scope of the action without providing the opportunity to opt out.

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Representative plaintiffs in each of British Columbia, Alberta, Saskatchewan, Ontario, and Quebec initiated proposed class proceedings alleging that Visa and MasterCard, together with financial institutions participating in the Visa and MasterCard credit card networks since 2001, conspired to set anti-competitive rules permitting them to fix and inflate the price of interchange fees imposed on merchants accepting payment by those credit cards. The claims were framed as breaches of the Competition Act, R.S.C., 1985, c. C 34, civil conspiracy to injure, unjust enrichment and waiver of tort. When representative plaintiffs sought court approval of settlement agreements with National Bank, Visa and MasterCard, class members Wal-Mart and Home Depot opposed the settlement agreements on the basis that they contained broad releases for future anticompetitive conduct. As such, they were illegal contracts in restraint of trade, contrary to public policy, and a confiscation of future access to justice. When superior courts granted orders approving the settlements, Wal-Mart and Home Depot sought to appeal. The appellate courts in B.C. and Ontario held that members of the class do not have standing to appeal court settlement approvals. In Quebec, Wal-Mart and Home Depot were not class members and therefore lacked the requisite interest to appeal.