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ARTICLE · 14 JULY 2022

Opening And Closing The Door On Reverse Summary Judgment Motions Pre-Certification In A Class Proceeding

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Justice Belobaba held that on the plain reading of this clause the possibility of the imposition of a second NSF on a single transaction was not fully and fairly disclosed.

CanadaLitigation, Mediation & Arbitration
Jacqueline M. Palef
Jacqueline M. Palef
Michael Dunk
Michael Dunk
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In Dufault v Toronto Dominion Bank,1 the defendant's pre-certification motion for summary judgment brought under section 4.1 of the Class Proceedings Act ("CPA") was dismissed. Of particular interest is Justice Belobaba's commentary regarding the appropriateness of granting reverse summary judgment in a proposed class action that has not yet been certified.

The Decision

The proposed class action concerned allegations that the defendant bank did not fully and fairly disclose the possibility that clients could be charged two NSF service fees for a single transaction involving insufficient funds. Specifically, this could occur when third-party payee's such as PayPal resubmitted requests for payment where the initial transfer of funds was rejected by the user's bank and the user still had insufficient funds at the time of the resubmission.

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