2018 QCCA 305, 2018 QCCA 305

Unofficial English Translation Option Consommateurs c. Banque Amex du Canada 2018 QCCA 305 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-026655-175 (500-06-000203-030, 500-06-000249-041, 500-06-000372-066 and 500-06-000373-064) REGISTRY OF QUEBEC No.: 200-09-009456-176 (200-06-000033-038) DATE: March 1, 2018 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. MARTIN VAUCLAIR, J.A.

No.: 500-09-026655-175 OPTION CONSOMMATEURS APPELLANT – Plaintiff BENOIT FORTIN MONIQUE DESJARDINS-ÉMOND JEAN AUDET WENDY LEE SIMPSON MARYLOU CORRIVEAU JACQUES GAGNÉ PIERRE CANTARA JUSTIN CHAUVETTE REPRESENTATIVE PLAINTIFFS – Representative Plaintiffs v. AMEX BANK OF CANADA CANADIAN TIRE BANK SCOTIA BANK PRESIDENTS’ CHOICE BANK CANADIAN IMPERIAL BANK OF COMMERCE RESPONDENTS – Defendants and

ATTORNEY GENERAL OF QUEBEC FONDS D'AIDE AUX ACTIONS COLLECTIVES L'OFFICE DE LA PROTECTION DU CONSOMMATEUR MIS EN CAUSE – Mis en cause No.: 200-09-009456-176 OPTION CONSOMMATEURS APPELLANT – plaintiff JOËL-CHRISTIAN ST-PIERRE REPRESENTATIVE PLAINTIFFS – Representative Plaintiff v.

CITIBANK OF CANADA CANADIAN IMPERIAL BANK OF COMMERCE LAURENTIEN BANK OF CANADA BANK OF MONTREAL HSBC BANK CANADA AMEX BANK OF CANADA RESPONDENTS – Defendants and FONDS D'AIDE AUX ACTIONS COLLECTIVES MIS EN CAUSE – Mis en cause JUDGMENT (translation) [1] [ 1 ] In file number 500-09-026655-175, the appellant appeals from a judgment rendered January 23, 2017 by the Superior Court, District of Montreal (the Honourable Claudine Roy), the conclusions of which were as follows: [TRANSLATION] [145] DISMISSES the Applications for approval of the transactions; [146] DISMISSES the Applications for permission to amend the cut-off dates in the class

definitions; [147] DISMISSES the Applications for approval of the professional fees of counsel for Option consommateurs; [148] WITHOUT LEGAL COSTS. [ 2 ] In file number 200-09-009456-176, the appellant appeals from a judgment rendered January 27, 2017 by the Superior Court, District of Quebec (the Honourable Denis Jacques), the conclusions of which were as follows: [TRANSLATION] [11] DISMISSES the application for approval of a transaction filed by Option consommateurs with the defendant Canadian Imperial Bank of Commerce; [12] WITHOUT LEGAL COSTS. [ 3 ] For the reasons of St-Pierre, J.A. with which Kasirer and Vauclair, JJ.A. agree, THE COURT: In file number 500-09-026655-175 : [ 4 ] DISMISSES the appeal, without legal costs.

In file number 200-09-009456-176 : [ 5 ] DISMISSES the appeal, without legal costs.

NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. MARTIN VAUCLAIR, J.A. Mtre Benoit Marion Mtre Guilad Krief Sylvestre Fafard Painchaud For the appellant Option consommateurs in file number 500-09-026655-175 Mtre David Bourgoin BGA avocats s.e.n.c.r.l.

Mtre Benoît Gamache Cabinet BG avocat inc. – Of counsel to the appellant For the appellant Option consommateurs in file number 200-09-009456-176 Mtre Éric Préfontaine Osler Hoskin & Harcourt, LLP For the respondent Amex Bank of Canada in file number 500-09-026655-175 and 200-09- 009456-176 Mtre Isabelle Vendette McCarthy Tétrault, LLP For the respondent Canadian Tire Bank in file number 500-09-026655-175 Mtre Mathieu Lévesque Borden Ladner Gervais, LLP Mtre Danielle Ferron (Of Counsel) Langlois avocats s.e.n.c.r.l.

For the respondents Scotia Bank and Presidents’ Choice Bank in file number 500-09-026655-175 Mtre Yves Martineau Mtre Guillaume Boudreau-Simard Stikeman Elliot, LLP For the respondents Canadian Imperial Bank of Commerce in file numbers 500-09-026655-175 and 200-09-009456-176 and Laurentien Bank of Canada in file number 200-09-009456-176 Mtre Ariane Bisaillon Blake Cassels & Graydon For the respondent Citibank of Canada in file number 200-09-009456-176 Mtre Mathieu Lévesque Borden Ladner Gervais, LLP For the respondents Bank of Montreal and HSBC Bank Canada in file number 200-09-009456- 176 Hearing Date: September 1, 2017 REASONS OF ST-PIERRE, J.A. [ 6 ] Did Superior Court Justices Claudine Roy [2] and Denis Jacques [3] commit reviewable errors when they decided to dismiss the applications for approval of the agreements negotiated to settle the class actions, for permission to amend the cut-off dates included in some of the class

definitions and for the approval of the professional fees of counsel representing the appellant parties? [ 7 ] In my view, no such errors were made. [ 8 ] As Mtre Yves Lauzon writes in his comments on

article 590 C.C.P. in Le Grand collectif [TRANSLATION] “in the spirit of class actions, it is imperative that courts ensure that the result obtained is truly just, reasonable and in the interest of the class members.” [4] Here, Justices Roy and Jacques judicially exercised the discretionary powers conferred upon them by the legislator as guardians of the interests of absent class members. They were bound to fulfil this role in a process in which the result would be final and, if a transaction was approved, constitute res judicata with respect to the parties and to the class members who had not opted out (art.

2848 C.C.Q. ): that is exactly what they did. [ 9 ] The analyses of Justices Roy and Jacques deserve deference on my part. [5] [ 10 ] The appeals should be dismissed. [ 11 ] My reasons follow. Context [ 12 ] Between 2003 and 2006, numerous class actions were commenced against Canadian banks and financial institutions for their alleged failure to respect various provisions of the Consumer Protection Act . [6] [ 13 ] Three of these class actions, Marcotte c. Banque de Montréal , Marcotte c. Fédération des caisses Desjardins du Québec and Adams c.

Banque Amex du Canada , were heard on the merits and each case gave rise to judgments of the Superior Court in June 2009, [7] of this Court in August 2012 [8] and of the Supreme Court in February 2014. [9] [ 14 ] Seven other class actions remain: the following table identifies these class actions and specifies which banks or institutions are concerned, as well as the legal provision upon which each action is founded: Record Number in First Instance Provision Allegedly Contravened Defendant Banks 500-06-000203-030 s. 126 C.P.A. : 126.

At the end of each period, the merchant must furnish the consumer who owes him a debt with a statement of account, mailed not less than 21 days before the date on which the creditor may impose credit charges, if the consumer does not discharge his obligation in full […]. Amex 200-06-000033-038 Amex Laurentien Bank of Canada HSBC MBNA Bank National Bank Royal Bank of Canada Toronto-Dominion Bank CIBC Citibank 500-06-000375-069 MBNA Bank Royal Bank of Canada Toronto-Dominion Bank 500-06-000221-040 s. 128 C.P.A. : 128.

Where the merchant has indicated to the consumer the amount up to which variable credit is extended to him, the merchant shall not increase such amount unless the consumer expressly applies therefor. Bank of Montreal 500-06-000372-066 Amex Laurentien Bank of Canada MBNA Bank Bank of Montreal National Bank Scotia Bank Royal Bank of Canada Toronto-Dominion Bank CIBC Citibank Desjardins 500-06-000249-041 ss. 69, 72, 91 and 92 C.P.A. : Disclosure and calculation of credit charges Canadian Tire Bank

500-06-000373-064 Amex President’s Choice Bank MBNA Bank Bank of Montreal National Bank Scotia Bank Royal Bank of Canada Toronto-Dominion Bank CIBC Citibank Desjardins [ 15 ] The law firm Sylvestre Fafard et Painchaud (“ SFP ”) has respresented Option consommateurs from the beginning and in all of the District of Montreal files (six of the seven files), while the firm BGA avocats (“ BGA ”) represented Option consommateurs in the District of Quebec.

Although the class actions were filed in 2003 and 2006, it was only in January 2014 that SFP and its client Option consommateurs signed the fee agreements invoked in support of their applications for the approval of professional fees and only on October 26, 2016 that an agreement was signed between Option consommateurs and BGA.

In the files considered here, Option consommateurs seeks approval for the following professional fees, payable to its counsel: Transaction SUM TO BE PAID Amex $761,709.38 [10] Canadian Tire Bank $431,156.25 [11] Scotia-PCB $100,603.13 [12] $143,718.75 [13] CIBC $1,221,609.36 [14] [ 16 ] Over the years, in one or another of the Superior Court files listed above (at paragraph [14] of these reasons), several transactions were approved following the negotiation of settlement agreements with certain banks: • in July 2010, a transaction between Bibaud and the National Bank of Canada [15] (the “NBC-1” transaction); • in September 2011, a transaction between the appellant and Desjardins [16] (the “Desjardins” transaction); • in June 2014, a transaction between the appellant and the Royal Bank of Canada and MBNA Bank [17] (the “RBC-MBNA” transaction); • in March 2015, a transaction between the appellant and the Toronto-Dominion and MBNA banks [18] (the “TD-MBNA” transaction); • in July 2015, a transaction between the appellant and the National Bank of Canada [19] (the “NBC-2” transaction); and • in September 2015, a transaction between the appellant and the Bank of Montreal [20] (the “BOM” transaction). [ 17 ] According to the terms of the five transactions concluded with the appellant and approved by the Superior Court (the Desjardins, RBC-MBNA, TD-MBNA, NBC-2 and BOM transactions), the banks paid $53.48 million of which $37.15 million was distributed to class members.

For the services rendered, the firm SFP received $13 million, of which nearly $300,000 was remitted to the Fonds d’aide aux actions collectives to reimburse the financial aid provided [TRANSLATION] “for the benefit of all the class members in the six files”. [21] BGA, for its part, received $395,000 from the TD-MBNA transaction. [ 18 ] In the course of 2016, four other agreements were made, with the banks agreeing to pay $9.25 million.

The following transactions were included therein: • a transaction in file numbers 500-06-000203-030, 500-06-000372-066 and 500-06-000373-064 between the appellant and Amex (the “Amex” transaction); • a transaction in file number 500-06-000249-041 between the appellant and the Canadian Tire Bank (the “CTB” transaction); • a transaction in file numbers 500-06-000373-064 and 500-06-000372-066 between the appellant and Scotia Bank and the President’s Choice Bank (the “Scotia-PCB” transaction); • a transaction in file numbers 500-06-000372-066, 500-06-000373-064 and 200-06-000033-038 between the appellant and the Canadian Imperial Bank of Commerce (the “CIBC” transaction).

[ 19 ] These four transactions are the subject matter of the present appeals and I will return later to the content of their various clauses (see paragraphs [53] to [57] of these reasons). [ 20 ] In each case, the appellant presented an application for approval of the transaction in the Superior Court, accompanied by an application for approval of professional fees and an application for permission to amend the cut-off date applicable to each class definition. The amendments sought “in respect of the cut-off dates” were as follows: Transaction and File No.

Initial Cut-Off Date Proposed Cut-Off Date Amex 500-06-000203-030 August 31, 2010 September 14, 2016 Amex 500-06-000372-066 September 30, 2010 September 14, 2016 Amex 500-06-000373-064 September 30, 2010 September 14, 2016 CTB 500-06-000249-041 September 30, 2010 July 11, 2016 Scotia-PCB 500-06-000372-066 September 30, 2010 July 31, 2015 Scotia-PCB 500-06-000373-064 September 30, 2010 July 31, 2015 CIBC 500-06-000372-066 September 30, 2010 November 17, 2016 CIBC 500-06-000373-064 September 30, 2010 November 17, 2016 [ 21 ] Justices Roy and Jacques heard all of these applications during a joint hearing held by videoconference on December 21, 2016. [ 22 ] On January 23, 2017, Justice Roy dismissed the applications for approval of the transactions, for permission to amend the cut- off dates and for approval of the professional fees payable to counsel for the appellant presented in all of the files in the Superior Court, District of Montreal. [ 23 ] On January 27, 2017, Justice Jacques dismissed the application for approval of the transaction presented in the Superior Court file in the District of Quebec.

The Judgments under Appeal Justice Claudine Roy’s judgment [ 24 ] Justice Roy described the class actions in the context of the proceedings and the issues with which she was seized. She also set out the case law to be taken into account: the Marcotte and Adams cases, as well as the judgments rendered by the Superior Court approving transactions between 2010 and 2015. [ 25 ] This being done, she analyzed the proposed transactions according to seven well-established factors, set out in the judgment Pellemans c.

Lacroix [22] as follows: • The likelihood that the action will succeed; • The extent and nature of the evidence to be adduced; • The anticipated cost and duration of the action; • The nature and number of objections to the transaction; • The recommendations of counsel and their degree of experience; [23] • The good faith of the parties and the absence of collusion; • The modalities, terms and conditions of the transaction. [ 26 ] At paragraph 44 of her judgment, the judge wrote: [TRANSLATION] [44] The first six factors weigh in favour of approving the transactions.

But certain terms and conditions in the agreements prevent

the Court from approving them. [ 27 ] Analyzing the modalities, terms and conditions of the transactions, that is the seventh factor, the judge questioned whether the amounts payable by the respondents were reasonable, highlighting several times that the parties seemed to have negotiated [TRANSLATION] “without knowing what was truly at issue”. She observed that the amounts that the respondents agreed to pay [TRANSLATION] “represent only a small fraction of the fees charged”.

In the case of the Scotia-PCB transaction, she emphasized the absence of any direct compensation for the class members and challenged the basis of the explanations given to this end. [ 28 ] Justice Roy then turned to the applications to amend the cut-off dates contained in the class

definitions, designed to bring the latter into line with the dates upon which the transactions were concluded.

In her view, the reasons invoked to justify these applications for amendment were unconvincing since: [TRANSLATION] [ 76 ] [ … ] • The parties negotiated with data regarding the fees charged ending in 2010, and not with updated data; • They admit that, in their negotiations, they did not take into account the interests of class members who paid fees subsequently since the classes, according to the authorization judgments, only include those who paid fees prior to September 2010; • The defendants did not add any amount to compensate the new class members and the monetary sum would simply be distributed among a greater number of class members; • A long gap occurred (13 to 22 months, depending on the case) between the agreements in principle and the written transactions and this delay is not justified. [ 29 ] Although she stated that she would, [TRANSLATION] “exceptionally”, be prepared to amend the class

definitions in file numbers 500-06-000249-041 and 500-06-000373-064, she refused to do so in file number 500-06-000203-030 with respect to the Amex transaction and in file number 500-06-000372-066 with respect to the CIBC transaction, in light of judgments confirming that these banks had changed their practices in 2010 and 2009, respectively. [ 30 ] Justice Roy then turned to the question of the fair and reasonable nature of the professional fees of counsel.

She adopted the factors set out at ss. 101 and 102 of the Code of Professional Conduct of Lawyers as an analytical framework: [ translation ] [83] […] • experience; • the time and effort required and devoted to the matter; • the difficulty of the matter; • the importance of the matter to the client; • the responsibility assumed; • the performance of unusual professional services or professional services requiring special skills or exceptional speed; • the result obtained; • the fees prescribed by statute or regulation; • the disbursements, fees, commissions, rebates, costs or other benefits that are or will be paid by a third party with respect to the mandate the client gave him or her. [ 31 ] While acknowledging [TRANSLATION] “the experience of counsel, the effort involved, the difficulty and the importance of the files”, the judge was of the view that counsel had overestimated the value of their services [TRANSLATION] “and that the sums sought are not fair and reasonable.” [ 32 ] As for the fee agreements, she observed the following: • While the actions were introduced in 2003, 2004 or 2006, as the case may be, it was only in 2014 that the parties signed these agreements; [24] • The agreements are not sufficiently detailed to satisfy the nine factors set out in the Code of Professional Conduct . [ 33 ] She noted the absence of evidence with respect to the amount of costs incurred, the hourly rates of counsel involved in the matter and the number of hours spent on each file or on the situation created by each respondent. [ 34 ] In her view, the 7,744 hours of work tendered in evidence [TRANSLATION] “seems to be a high number for files that are still

not ready for trial.” [ 35 ] While counsel at SFP always considered the various files as a single file within their firm, the judge observed that if the proposed transactions were to be approved they would receive fees superior to those granted in the Marcotte and Adams files, [TRANSLATION] “without ever having pleaded the case and having worked approximately half the number of hours.” [ 36 ] She wrote: [TRANSLATION] [107] It is true that the total amount paid by all of the defendants is significant (a total of $62.7 million). On the one hand, we are not faced with a single file, but with six files.

On the other hand, there comes a time when a file is not more complicated and does not require more preparation whether there are three, five or ten defendants, or whether there are 100,000 or 500,000 class members or whether the transaction is obtained by paying three, ten or fifty million. [108] Fee agreements, like those analyzed here, frequently provide for progressive percentages depending on the stage of a file’s advancement.

They should also provide for regressive percentages in the event that a given maximum or minimum amount is obtained. [109] From a more global perspective, the conditions for authorizing a class action are interpreted more broadly than ever and actions against multiple defendants representing an entire industry are now permitted.

The amounts in play are frequently very significant, without necessarily rendering the files more complex. [110] Courts must be vigilant in order to avoid class actions becoming a source of enrichment for plaintiffs’ lawyers and a source of financing for non-profit organisations. [111] If all of the agreements were approved, the non-profit organizations would have received and would receive $942,368. The Court has difficulty understudy why nearly a million dollars would be distributed to non-profit organizations while known class members obtain a mere pittance of compensation for the fees they paid.

This is not the raison d’être of the class action. Above all, class actions aim to compensate members for an injury suffered or for failure to respect the law. [112] If the Court calculated 7,744 hours at an average hourly rate of $300 (for purposes of illustration only), the fees would amount to $2,323,200. The $15,337,500 that Sylvestre Fafard Painchaud seeks would be equivalent to applying a multiplier of 6.6 (nearly $2,000 per hour), while the Quebec case law generally uses a multiplier varying between 2 and 2.5. [113] Applying a multiplier of 2 or 2.5, the fees would amount to between $4.6 and $5.8 million.

But, counsel has already received $13,025,000 (or 5.6 times the $300 hourly rate). [114] The Court will not reconsider the judgments rendered by Justices Gascon, Corriveau and Alary.

But, it notes that the piecemeal presentation of applications for approval, spread out over a period of many years, did not allow these judges to have a global view of the files whereas many of the applications for approval of these agreements could have been presented at the same time. [115] The Court concludes that extrajudicial fees of 5% of the amounts to be received would have been fair and reasonable compensation for counsel to finish their work.

For the agreements with Canadian Tire Bank, AMEX and CIBC, this would mean 5% X ($1.5 million + $2.65 million + $4.25 million) = $420,000. [116] Certainly the effect of this decision is that the clients of the banks that were among the first to reach agreements will find themselves paying more professional fees than clients of the banks at issue here.

But, it is Option consommateurs that has chosen to present its applications for approval one by one, spread out over a period of two years. [ 37 ] This being the case, Justice Roy refused to approve the professional fees and, given those fees formed part of the agreements which she did not have the power to amend, she refused the approvals sought. Despite this conclusion, she offered the parties a possible solution. She wrote: [TRANSLATION] [123] The Court does not have the power to amend the agreements.

However, it invites Option consommateurs, the Canadian Tire, Amex and CIBC banks to take this judgment into consideration and to negotiate new agreements. [124] If the parties accept to amend the agreements such that: • the classes in file 030 for the transaction concluded with Amex and in file 066 for the transaction concluded with CIBC are not amended (since the impugned practices were not in place subsequent to the period already set out in the authorization judgments); • the fees payable to Sylvestre Fafard Painchaud are reduced to 5% of the amounts payable by the Canadian Tire, Amex and CIBC banks; • the surplus resulting from this reduction in fees is distributed to the class members; the Court would be in a position to approve the agreements between Option consommateurs and the Canadian Tire Bank, Amex and CIBC. [ 38 ] Finally, because the Scotia-PCB transaction held no advantage for the class members, the judge favoured discontinuance.

On this topic, she expressed herself thus: [TRANSLATION]

[144] Discontinuance seems to be an appropriate solution in a case where, as here: • the agreement represents a small fraction of the value in dispute; • nothing is distributed to the class members; • the defendants are attempting to extend the period contemplated by the action by more than five years without compensating the new class members; • counsel has already been largely remunerated for their work thanks to agreements concluded with other defendants; • the defendants have not changed their commercial practices because they consider them to be perfectly legal; • plaintiffs’ counsel is of the view that the likelihood of success is greatly diminished.

Justice Denis Jacques’ judgment [ 39 ] Justice Jacques wrote his judgment using a “whereas” format: he set out the history of the application with which he was seized, mentioned the joint hearing held by videoconference on December 21, 2016 and its justification, and confirmed that he shared the opinion expressed several days earlier by his colleague Justice Claudine Roy (including both her analysis and her conclusions). [ 40 ] In this context, observing that the agreement before him was conditional upon a total (complete) approval, he dismissed the application for approval presented by the appellant and the respondent CIBC.

Grounds of Appeal [ 41 ] The appellant submits that Justices Roy and Jacques erred, in each of the files, for the following seven reasons: • Amex and CIBC Transactions : in failing to find a reason to amend the class definition and for concluding that amendment was inappropriate; • Amex, CIBC and CTB Transactions : in deciding that extrajudicial fees amounting to 5% of the sums to be received would compensate counsel fairly and reasonably for finishing their work; • CIBC Transaction (District of Quebec file) : in sharing the views of Justice Roy (adopting her analysis and the conclusions she proposed); • Scotia-PCB Transaction : in deciding that there was no explanation for the absence of compensation for class members or the absence of direct compensation; • Scotia-PCB Transaction : in holding that it was impossible for the extension of the class period to be in the interest of the class members (amendment of the cut-off date contained in the class definition) where the class members received nothing; • Scotia-PCB Transaction : in writing that the agreement concluded favoured plaintiff’s counsel, certain non-profit organisations and the Scotia and President’s Choice banks while presenting no advantage for the class members and that discontinuance was the preferable course of action; • Scotia-PCB Transaction : in holding that no class member would accept to pay professional fees to the firm SFP without receiving any compensation when the firm had already earned $13 million for the work completed.

Grounds [ 42 ] Taking these seven grounds of appeal into account, I am of the view that the present appeals raise four issues: • First Issue : which factors were the justices required to consider in analyzing the applications for approval of counsel’s professional fees and what was or should have been, as the case may be, the legal impact of their conclusions? • Second Issue : what are the contours of the discretionary power to authorize amendment of a class definition in the context of a transaction for which the parties seek approval? • Third Issue : was Justice Roy justified in refusing to approve the Scotia-PCB transaction because the class members would receive nothing and, in the circumstances, would discontinuance have been more appropriate? • Fourth Issue : was it permissible for Justice Jacques to agree with and adopt the positions of his colleague Justice Roy and, consequently, to dismiss the applications before him? [ 43 ] Responding to the first three issues allows us to resolve the appeal regarding the judgment rendered by Justice Roy; the appeal concerning Justice Jacques’ judgment can be resolved by responding to the fourth issue.

Submissions of the Appellant Option consommateurs

First Issue [ 44 ] The appellant advances that the judges could not refuse to approve the transactions for reasons linked to the professional fees of counsel. It pleads that the questions raised by these fees are irrelevant in reviewing whether the transactions are “fair, reasonable, and in the best interest of the class members”.

In its view, this is a related issue that the judges should have analyzed separately and independently of the question of whether the transactions would be approved. [ 45 ] According to the appellant, the text of the transactions in no way renders their approval conditional upon the approval of these professional fees. Holding that the fees were too high, the judges should have relied upon

article 593 C.C.P. to fix these at a lesser amount. The difference would then have constituted a “remaining balance” in the sense of

article 596 C.C.P. , an additional sum to be treated as such. [ 46 ] The appellant also argues that Justice Roy was not entitled to add up the fees approved in previous transactions to conclude that the sums set out in the various transactions to be approved were unreasonable. Citing the approval judgments obtained in 2011 and 2015 (mentioned at paragraph [16] of these reasons), the appellant notes that, in any case, the fees [TRANSLATION] “applied to each result obtained” were considered reasonable.

Finally, with respect to the Scotia-PCB transaction, the appellant adds that Justice Roy considered an “improper” factor, namely the absence of any amount to be distributed to each of the class members and failed to provide a justification for doing so. [ 47 ] In short, the appellant’s position is that the fees could not preclude the approval of any of the transactions. It invites us to hold that the judges erred and that these errors justify an intervention on appeal. Second Issue [ 48 ] The appellant asserts that if the cut-off dates in the class

definitions are not amended, the respondents run the risk of crediting the accounts of certain individuals without obtaining discharge from their in exchange. Because, in its opinion, the factors set out at

article 206 C.C.P. governing the right to amend a proceeding are satisfied – the amendments sought will not delay the proceeding, do not constitute an entirely new application, and are not contrary to the interests of justice – the judges erred in refusing the amendments. Third Issue [ 49 ] The appellant criticizes Justice Roy for having failed to consider evidence that individual distribution would be disproportionate and unduly onerous, and that the costs of distribution would represent too great a proportion of the amount agreed to.

The appellant also criticizes the judge for having considered an “improper factor”, namely the possibility of discontinuance which it finds too extreme an option.

Fourth Issue [ 50 ] The appellant criticizes Justice Jacques for not having undertaken his own analysis of the CIBC transaction, a transaction it submits is different from the others. [ 51 ] The appellant adds that the judge should have specifically considered the professional fees payable to BGA, a firm that accepted to work in a partnership [TRANSLATION] “in order to create a climate favourable to a global settlement in all of the files involving CIBC and AMEX”.

In its opinion, this partnership should not [TRANSLATION] “result in one of the partners being punished for this common enterprise allowing the maximization of the amounts obtained for the class members”. Submissions of the Respondents [ 52 ] Each respondent that appeared at the hearing essentially supported the submissions of the appellant. Some Aspects of the Transactions at Issue [ 53 ] Before turning to the first three issues, it is worth recalling some of the aspects of the transactions for which the parties seek approval, because, as we shall see later on, the judgments under appeal flow from this content.

The Amex transaction [ 54 ] The agreement concluded with Amex, relevant to file numbers 500-06-000203-030, 500-06-000372-066, 500-06-000373-064 and 200-06-000033-038 and reproduced in

part in

schedule 1 to these reasons, provides, among other things that: • the transaction is conditional upon its approval in its entirety, otherwise it will be deemed null and will not give rise to any right whatsoever in favour of or against the parties (section III-3); • an application for permission to amend the cut-off date in the class definition will be presented, such that the cut-off date will coincide with the date of signature of the transaction (section III-5); • Amex’s impugned practices in both files ceased as of August 31, 2010 (section IV-8(f));

• the professional fees payable to counsel for Option consommateurs, set at $761,709.38, form an integral part of the financial compensation to be paid by Amex, while the total direct compensation for the class members will be $1,888,290.62 less the notice publication costs (section V-11); • during the hearing for the application for approval of the transaction, counsel for Option consommateurs undertakes to make the necessary representations to convince the Court that the professional fees agreed upon are fair and reasonable (section XI-50); • Amex will pay Option consommateurs $761,709.38 following approval of the transaction (section XI-52); • in consideration for this $761,709.38 payment, counsel for Option consommateurs undertakes not to claim anything further from Amex or the class members (section XI-53); • the transaction must be considered as a whole – a complete and full settlement between the parties (section XVI-67); • the transaction is the final and definitive settlement of all the disputes opposing the parties, within the meaning of

article 2631 C.C.Q. (section XVI-69); and • the clauses of the transaction are inseparable and indivisible, being intrinsically linked and dependant on each other (section XVI- 71). The CTB transaction [ 55 ] The agreement concluded with CTB, relevant to file number 500-06-000249-041 and reproduced in

part in

schedule 2 to these reasons, provides: • that the transaction is conditional upon its approval in its entirety, otherwise it will be deemed null and will not give rise to any right whatsoever in favour of or against the parties (section III-3); • that the professional fees payable to counsel for Option consommateurs, set at $431,156.25, form an integral part of the financial compensation to be paid by Amex, while the total direct compensation for the class members will be $1,068,843.75 (section V-9); • that during the hearing for the application for approval of the transaction, counsel for Option consommateurs undertakes to make the necessary representations to convince the Court that the professional fees agreed upon are fair and reasonable (section XI-47); • that CTB will pay Option consommateurs $431,156.25 following approval of the transaction (section XI-48); • that in consideration for this $431,156.25 payment, counsel for Option consommateurs undertakes not to claim anything further from CTB or the class members (section XI-49); • that the transaction must be considered as a whole – a complete and full settlement between the parties (section XVI-63); • that the transaction is a final and definitive settlement of all the disputes opposing the parties, within the meaning of

article 2631 C.C.Q. (section XVI-65); and • that the clauses of the transaction are inseparable and indivisible, being intrinsically linked and dependant on each other (section XVI-67). The Scotia-PCB transaction [ 56 ] The agreement concluded with Scotia Bank and PCB, relevant to file numbers 500-06-000373-064 and 500-06-000372-066 and reproduced in

part in

schedule 3 to these reasons, sets out: • that the transaction is conditional upon its approval in its entirety, otherwise it will be deemed null and will not give rise to any right whatsoever in favour of or against the parties ([TRANSLATION] Scope and Extent of the Transaction –

section 3); • that the professional fees payable by PCB to counsel for Option consommateurs, set at $100,603.13, form an integral part of the financial compensation to be paid by PCB, to which will be added the amount to be reimbursed to the Fonds d’aide ($137,168.28) and the remaining balance of $112,228.59 to be distributed in equal parts to various non-profit microcredit organisations ([TRANSLATION] The Banks’ Financial Consideration –

section 8); • that the professional fees payable by Scotia to counsel for Option consommateurs, set at $143,718.75, form an integral part of the financial compensation to be paid by Scotia, to which will be added the amount to be reimbursed to the Fonds d’aide ($178,140.63) and the remaining balance of $178,140.62 to be distributed in equal parts to various non-profit microcredit organisations ([TRANSLATION] The Banks’ Financial Consideration –

section 9); • that during the hearing for the application for approval of the transaction counsel for Option consommateurs undertakes to make the necessary representations to convince the Court that the professional fees agreed upon are fair and reasonable ([TRANSLATION] Option consommateurs’ Fees and Expenses – sections 40 and 41); • that PCB will present Option consommateurs with $100,603.13 following approval of the transaction ([TRANSLATION] Option consommateurs’ Fees and Expenses –

section 42); • that Scotia will present Option consommateurs with $143,718.75 following approval of the transaction ([TRANSLATION] Option consommateurs’ Fees and Expenses –

section 42);

• that in consideration for these payments of $100,603.13 and $143,718.75, counsel for Option consommateurs undertakes not to claim anything further from PCB, Scotia or the class members ([TRANSLATION] Option consommateurs’ Fees and Expenses –

section 43); • that the transaction must be considered as a whole – a complete and full settlement between the parties ([TRANSLATION] Final Provisions –

section 57); • that the transaction is a final and definitive settlement of all the disputes opposing the parties, within the meaning of

article 2631 C.C.Q. ([TRANSLATION] Final Provisions –

section 59); and • that the clauses of the transaction are inseparable and indivisible, being intrinsically linked and dependant on each other ([TRANSLATION] Final Provisions –

section 61). The CIBC transaction [ 57 ] As for the agreement concluded with CIBC, relevant to file numbers 500-06-000372-066, 500-06-000373-064 and 200-06- 000033-038 and reproduced in

part in

schedule 4 to these reasons, we find: • that the transaction is conditional upon its approval in its entirety, otherwise it will be deemed null and will not give rise to any right whatsoever in favour of or against the parties (section III-3); • that an application for permission to amend the cut-off date in the class definition will be presented, such that the cut-off date will coincide with the date of signature of the transaction (section III-5); • that CIBC’s impugned practices in one of the files ceased as of January 1, 2010 (section IV-8(f)); • that CIBC will pay compensation in the amount of $4,259,000, of which $1,221,609.36 constitutes the fees payable to counsel for Option consommateurs and $3,028,390.64 less the notice publication costs constitutes the compensation paid to the class members (section V-11); • that during the hearing for the application for approval of the transaction counsel for Option consommateurs undertakes to make the necessary representations to convince the Court that the professional fees agreed upon are fair and reasonable (section XI-50); • that CIBC will pay Option consommateurs $1,221,609.36 following approval of the transaction (section XI-51); • that in consideration for this $1,221,609.36 payment, counsel for Option consommateurs (SFP and BGA) undertakes not to claim anything further from CIBC or the class members (section XI-52); • that the transaction must be considered as a whole – a complete and full settlement between the parties (section XVI-66); • that the transaction is a final and definitive settlement of all the disputes opposing the parties, within the meaning of

article 2631 C.C.Q. (section XVI-68); and • that the clauses of the transaction are inseparable and indivisible, being intrinsically linked and dependant on each other (section XVI-70). [ 58 ] Bearing in mind the context, the judgments under appeal, the issues on appeal, the relevant questions, the submissions of the parties and the elements of the transactions as set out above, I will now analyze the issues on appeal.

Analysis [ 59 ] I turn now to the first issue: which factors were the judges required to consider in analyzing the applications for approval of counsel’s professional fees and what was or should have been, as the case may be, the legal impact of their conclusions? Analysis of the first issue [ 60 ] In class actions, there is no doubt that the duty of reviewing the professional fees of counsel for the class representative rests with the court which must assess whether the fees are fair and reasonable, justified by the circumstances and proportional to the services rendered: [25]

593. The court may award the representative plaintiff an indemnity for disbursements and an amount to cover legal costs and the lawyer’s professional fee. Both are payable out of the amount recovered collectively or before payment of individual claims. In the interests of the class members, the court assesses whether the fee charged by the representative plaintiff’s lawyer is reasonable ; if the fee is not reasonable, the court may determine it.

Regardless of whether the Class Action Assistance Fund provided assistance to the representative plaintiff, the court hears the Fund before ruling on the legal costs and the fee. The court considers whether or not the Fund guaranteed payment of all or any portion of the legal costs or the fee. 593. Le tribunal peut accorder une indemnité au représentant pour le paiement de ses débours de même qu’un montant pour le paiement des frais de justice et des honoraires de son avocat, le tout payable à même le montant du recouvrement collectif ou avant le paiement des réclamations individuelles.

Il s’assure, en tenant compte de l’intérêt des membres du groupe, que les honoraires de l’avocat du représentant sont raisonnables ; autrement, il peut les fixer au montant qu’il indique. Il entend, avant de se prononcer sur les frais de justice et les honoraires, le Fonds d’aide aux actions collectives que celui-ci ait ou non attribué une aide au représentant. Le tribunal prend en compte le fait que le Fonds ait garanti le paiement de tout ou

partie des frais de justice ou des honoraires. [Emphasis added] [ 61 ] The legislative has charged judges with acting as guardians protecting the rights of class members. [26] Thus, while still relevant to the first issue, no fee agreement concluded between the class representative and counsel – nor any fee agreement concluded between the class representative, counsel and the opposing parties in a transaction submitted for approval – binds the judge. [27] [ 62 ] Courts should not hesitate to “revise the amount of these fees to reflect their true value, arbitrate them, and reduce them when they are pointless, exaggerated, or disproportionate to the gain expected by the group from the action.” [28] [ 63 ] Review of the professional fees of counsel is discretionary and calls for deference on the part of the Court of Appeal. [29] [ 64 ] The Code of Civil Procedure does not set out criteria or factors to be used in evaluating whether professional fees are fair and reasonable, but the Professional Code , [30] the Act respecting the Barreau du Québec [31] and the regulations adopted pursuant to these laws do. [32] [ 65 ] Sections 101 and 102 of the Code of Professional Conduct of Lawyers provide:

101. A lawyer must charge and accept fair and reasonable fees and disbursements. The same applies to advances he asks the client to provide. 102. The fees are fair and reasonable if they are warranted by the circumstances and proportionate to the professional services rendered.

In determining his fees, the lawyer must in particular take the following factors into account: ( 1) experience; (2) the time and effort required and devoted to the matter; (3) the difficulty of the matter; (4) the importance of the matter to the client; (5) the responsibility assumed; (6) the performance of unusual professional services or professional services requiring special skills or exceptional speed; (7) the result obtained; (8) the fees prescribed by statute or regulation; and (9) the disbursements, fees, commissions, rebates, costs or other benefits that are or will be paid by a third party with respect to the mandate the client gave him. 101.

L’avocat demande et accepte des honoraires et des débours justes et raisonnables. Il en est de même des avances demandées au client. 102. Les honoraires sont justes et raisonnables s’ils sont justifiés par les circonstances et proportionnés aux services professionnels rendus.

L’avocat tient notamment compte des facteurs suivants pour la fixation de ses honoraires: 1° l’expérience; 2° le temps et l’effort requis et consacrés à l’affaire; 3° la difficulté de l’affaire; 4° l’importance de l’affaire pour le client; 5° la responsabilité assumée; 6° la prestation de services professionnels inhabituels ou exigeant une compétence particulière ou une célérité exceptionnelle; 7° le résultat obtenu; 8° les honoraires prévus par la loi ou les règlements; 9° les débours, honoraires, commissions, ristournes, frais ou autres avantages qui sont ou seront payés par un tiers relativement au mandat que lui a confié le client. [Emphasis added] [ 66 ] The general principles and analytical framework relevant to whether professional fees are fair and reasonable flows from the consideration of these factors. [33] In this context, fee agreements enjoy a presumption of validity and will only be set aside if applying them would not be fair and reasonable for the class members in the context of the transaction being reviewed. [34] As for the multiplier model, it is a tool for evaluating whether fees are reasonable. [35] [ 67 ] Although judges should be flexible when reviewing proposed professional fees and should give weight to the express wishes of the parties, they must nonetheless assess whether the fees are indeed fair and reasonable. [36] [ 68 ] As we see in reading legislative texts from other provinces [37] and the resulting case law on the matter, professional fees of counsel receive similar treatment elsewhere in Canada.

Indeed, these laws require that fees be approved by judges, and that the former assess whether the fees are fair and reasonable; the case law sets out general principles, [38] refers to review frameworks that are entirely comparable and compatible with the state of affairs in Quebec and confirms the deference that should be accorded to first instance judgments in such matters. [39] [ 69 ] Here, counsel for the appellants acknowledge that the seven files at issue have always been managed together, as if they were a single file. [ 70 ] In all of their applications for fee approval, counsel reported having devoted the same number of hours to the matter (a single number).

This number represents all the hours invested in the files from day one, notably the hours required to draft pleadings, to participate in the related debates and to negotiate the agreements that counsel for Option consommateurs was able to obtain approval for between 2010 and 2015, described at paragraph [16] of these reasons. [ 71 ] Their argument that Justice Roy should have set aside any reference to the past, completely ignores what they would have previously received for the services rendered. This is to say the least incongruous.

[ 72 ] In a context where the lawyers manage the files and present the arguments regarding the fees as a whole, as if the affair were just one mandate or file, it was not only justified but essential that Justice Roy take into account the fees already received.

Though it would have been preferable for this to have been done earlier, in the context of the transactions approved between 2010 and 2016, a finding that this did not occur does not justify continuing to persist in this same omission. [ 73 ] Not only do I conclude that Justice Roy committed no reviewable error and that deference is owed to her view that the professional fees set out in the fee agreements are neither fair nor reasonable, I also share her views as expressed at paragraphs 107 to 116 of her judgment (reproduced at paragraph [36] of these reasons). [ 74 ] In the circumstances and in the absence of amendments agreed upon by the parties with respect to the content of the transaction to be approved, the conclusion that the fees are neither fair nor reasonable required that the applications for approval of the transactions be dismissed because, in each case, these fees – including their quantum – could not be severed from the agreements.

In his comments on

article 590 C.C.P. in Le Grand collectif , Mtre Yves Lauzon wrote on the topic as follows: [TRANSLATION] II — Powers and role of the court The court does not have the power to amend the transaction at its own initiative. It must respect the will of the parties who negotiated freely within the limits of the compromises they considered possible in order to arrive at an agreement. On this basis, in principle, the court must approve or dismiss the transaction before it as-is, in accordance with its analysis of the applicable factors.

Experience shows that courts have gradually found a third means of fully respecting the will of the parties without limiting themselves to the rigid formalism of approving or dismissing what is presented to them. In the last decade we have seen an emergent evolution in the way courts wield this power of review by moving towards a much more proactive approach and open dialogue with counsel. As needed, courts express concerns, or even disagreement, with respect to specific aspects of the transaction and invite counsel to consider amendments the court considers desirable or essential for approval.

Thus, courts provide constructive criticism without imposing their own views and counsel have the opportunity to amend settlement agreements to this end (see Option Consommateurs c. Banque Amex du Canada , 2017 QCCS 200 , EYB 2017-275466). In exercising their powers to review transactions according to established factors, courts must also respect two guiding principles recognized in the case law. Transactions should be considered favourably and even encouraged by the courts because they have clear benefits for the administration of justice.

Indeed, they allow for more expedient dispute resolution, which is consonant with the goal of providing access to justice within acceptable timeframes. They also contribute to the efficient use of judicial resources by avoiding trials which may be long and costly.

These advantages square perfectly with the aspiration set out in the first part of the second paragraph of the preliminary provision of the Code of Civil Procedure , which reads: This Code is designed to provide, in the public interest, means to prevent and resolve disputes and avoid litigation through appropriate, efficient and fair-minded processes that encourage the persons involved to play an active role.

Courts must avoid seeking perfect or ideal transactions and should always keep in mind that transactions are the result of compromises agreed to on both sides, without which the transaction would have been impossible.

The adage “ the best is the enemy of the good ” captures this principle. [40] [Emphasis added] Here, in accordance with the new path of which Mtre Lauzon writes, the judge opened the conversation at paragraph 124 of her judgment (reproduced at paragraph [37] of these reasons), but her invitation has not yet been acted upon. [41] [ 75 ] As we see from reading the four agreements for which the parties seek approval (see schedules 1 to 4 of these reasons [42] ), each agreement, a transaction in the sense of

article 2631 C.C.Q. , must be taken as a whole composed of inseparable and indivisible clauses: in each case, the transaction must be taken as a group of clauses from which no part may be amended or severed. [43] [ 76 ] As such, as Justice Roy noted at paragraph 123 of her judgment (reproduced at paragraph [32] of these reasons), seized with applications for approval of transactions which she could not amend, [44] her hands were tied: the conclusion that the professional fees of counsel were not fair and reasonable led ineluctably to the conclusion that approval of the proposed transactions would have to be refused.

The situation was the same for Justice Jacques. ******** [ 77 ] Let us turn now to the second issue: what are the contours of the discretionary power to authorize modification of a class definition in the context of a transaction for which the parties seek approval? Analysis of the second issue [ 78 ]

Article 588 C.C.P . reads:

588. The court may at any time, on the application of a party, revise or annul the authorization judgment if it considers that conditions relating to the issues of law or fact or to the composition of the class are no longer satisfied. If the court revises the authorization judgment, it may allow the representative plaintiff to amend the conclusions sought. In addition, if circumstances so require, the court may, even on its own initiative, modify or divide the class at any time.

If the court annuls the authorization judgment, the proceeding continues between the parties before the competent court according to the procedure set out in Book II. 588. Le tribunal peut, en tout temps, à la demande d’une partie, réviser ou annuler le jugement d’autorisation s’il considère que les conditions relatives aux questions de droit ou de fait ou à la composition du groupe ne sont plus remplies. S’il révise le jugement d’autorisation, il peut permettre au représentant de modifier les conclusions recherchées.

De plus, si les circonstances l’exigent, il peut, en tout temps et même d’office, modifier ou scinder le groupe.

Si le tribunal annule le jugement d’autorisation, l’instance se poursuit entre les parties devant le tribunal compétent, suivant la procédure prévue au livre II. [ 79 ] There is no doubt that judges have the power to revise the class definition if the circumstances so require. [45] But, were Justices Roy and Jacques bound to do so here, to accede to granting the applications to amend the cut-off dates – that is the question. [ 80 ] Nothing required the judges to grant the applications to amend the cut-off dates with respect to the Amex and CIBC transactions, these applications having been presented for the sole purpose of accommodating the parties with respect to the approval of transactions drafted in such a way as to make these amendments inescapable, [46] despite the acknowledgment that the impugned practices had ceased.

Indeed, in the text of the Amex and CIBC transactions, the parties confirm that the impugned practices do not affect individuals who did business with Amex or CIBC between August or September 2010 and September 14, 2016 in the case of Amex, and between January 1, 2010 and November 17, 2016 in the case of CIBC. [47] [ 81 ] The judges could not grant applications to amend the class

definitions in such a way as to target individuals who could not be class members. ******** [ 82 ] I have framed the third issue as follows: was Justice Roy justified in refusing to approve the Scotia-PCB transaction because the class members would receive nothing and, in the circumstances, would discontinuance have been more appropriate?

Analysis of the third issue [ 83 ] Before approving a transaction, a judge must conclude that it is fair, reasonable and in the best interest of the class members who will be bound by it. [48] [ 84 ] The judge’s role is to act as a guardian of the interests of the absent class members, a role of heightened importance where the proposed transaction, if approved, would end the legal debate, bind the absent members and have the effect of res judicata .

Although a judge should not require that a transaction be ideal, the judge must nevertheless ensure that it is fair and reasonable by weighing the advantages and disadvantages, fully aware of the risks and costs associated with continuing the dispute and the reality of the reciprocal concessions made in these circumstances. [49] [ 85 ] With respect to the Scotia-PCB transaction, Justice Roy wrote, among other things: [TRANSLATION] [129] The amounts represent 7 and 11%, respectively, of the value of the dispute ($3.1 million in fees charged by President’s Choice Bank and $7.1 million in fees charged by Scotia Bank during the period for which they seek the Court’s approval, without taking into account the interest sought, the additional indemnity or punitive damages). [130] Of all the transactions concluded in the actions against the financial institutions, this is the only one in which the class members receive no financial compensation (whereas in the other files class members received approximately $4, $5, $6, $7, $21 or $105). [131] Option consommateurs explains that the agreement with President’s Choice Bank and Scotia Bank is less significant because the market shares are smaller.

It filed no evidence in this respect. In any case, the explanation is incomplete since, in the other agreements, the amount paid was sufficient to compensate class members and to pay additional sums to non-profit organizations. Thus, the absence of compensation for the class members cannot be explained merely by smaller market shares. [132] Option consommateurs then explained that the settlement is less favourable than others because it was concluded after the Court of Appeal judgments in Marcotte and Adams, both of which were less favourable to its position. Again, this is not a complete explanation.

The agreements with Royal Bank of Canada, MBNA, TD Bank, National Bank of Canada and the Bank of Montreal were

also concluded after the Court of Appeal judgment. [133] It goes without saying that, since the negotiations are conducted individually with each defendant, the agreements need not be identical. But nothing explains what interest the class members have in approving an agreement from which they receive no direct compensation. [134] It is certainly possible that a judgment or a settlement agreement would not allow for compensation to be distributed to class members, because the legislative itself mentions this possibility at

article 597 C.C.P. [135] For example, the Court applied this provision in Ratti c. Corbeil Électricque inc . In that matter, the class representative could no longer act and the defendant had modified its behaviour. The parties agreed that the defendant would make a symbolic donation to a non-profit organization to settle the file.

The plaintiff’s law firm drew no fees from the amount paid. [136] The situation is different here. […] [141] The Court believes that no class member would accept to pay professional fees to the firm Sylvestre Fafard Painchaud while receiving no compensation and where the firm has already received $13 million for the work accomplished. [142] The agreement favours the plaintiff’s lawyers, certain non-profit organizations and the two banks, but holds no advantage for the class members: • the practices for which the actions were undertaken are still in place because the defendants are of the view that they comply with the law; • the class members receive no compensation; • the professional fees that Option consommateurs contemplates paying its counsel are not reasonable. [143] One of two options must be taken: either the two defendants accept to pay an amount sufficient to compensate the class members, or the plaintiff discontinues the action. [144] Discontinuance appears to be an appropriate solution where, as here: • the agreement represents a small fraction of the value in dispute; • nothing is distributed to the class members; • the defendants are attempting to extend the period contemplated by the action by more than five years without compensating the new class members; • counsel has already been largely remunerated for their work thanks to the agreements concluded with other defendants; • the defendants have not changed their commercial practices because they consider them to be perfectly legal; • plaintiffs’ counsel is of the view that the likelihood of success is greatly diminished. [ 86 ] These observations flow from the exercise of discretion which is deserving of great deference.

Here, the judge provided reasons for her conclusion and the parties have not succeeded in demonstrating that, in the circumstances, this is an abusive or unreasonable exercise of discretion. [ 87 ] Justice Roy was entitled to refuse approval of the transaction for this reason (the absence of compensation paid to the class members) among others. ******** [ 88 ] Finally, we turn to the fourth issue: was it permissible for Justice Jacques to agree with and adopt the positions of his colleague Justice Roy and, consequently, to dismiss the applications before him?

Analysis of the fourth issue [ 89 ] Given the interrelatedness of the applications for approval, Justices Roy and Jacques held a joint hearing. [ 90 ] The issues in dispute were the same in the District of Quebec file and in the District of Montreal files. [ 91 ] In this context, nothing precluded Justice Jacques writing in his judgment that he agreed with and adopted, in whole or in part, the relevant views expressed by his colleague Justice Roy.

Because the professional fees of counsel could not be severed from the proposed transactions, it was, at any rate, impossible for Justice Jacques to do otherwise. ******** Closing Remarks

[ 92 ] In holding that the professional fees were not fair and reasonable, that amending the cut-off dates was not appropriate in at least two files and in observing that it was impossible to amend the agreements concluded, Justices Roy and Jacques had no choice but to refuse approval of the proposed transactions. [ 93 ] If the parties wish to settle the disputes that oppose them, it now falls to them to amend their agreements so that they can be approved: the judges did not have the power to do so. MARIE ST-PIERRE, J.A.

SCHEDULE 1 Amex transaction III. SCOPE AND EXTENT OF THE SETTLEMENT […] 3. The Settlement is conditional upon its approval in its entirety by the Court, otherwise the Settlement will be deemed null and void and will not give rise to any right or obligation in favour of or against the Parties, Designated Persons, and Members of the Groups; […] 5.

At the Hearing to Approve the Settlement, Option consommateurs, the Designated Persons, and the Bank will present a motion for permission to amend in order to modify the group’s cut-off date I the Fortin, Corriveau and Lamoureux Class Actions so that it coincides with the Date of Signature of the Settlement; IV FACTS AND CONSIDERATIONS UNDERLYING THE SETTLEMENT 8. The facts and considerations underlying the Settlement and justifying the agreement signed between the Parties as evidenced by the Settlement are as follows: […] f.

The Bank has ceased the practice impugned in the Fortin Class Action and the St-Pierre Class Action since August 31, 2010; […] V. FINANCIAL COMPENSATION BY THE BANK […] 11.

After deduction of the fees of Option consommateurs’s Attorneys, i.e. $761,709.38 calculated in accordance with the terms set out in paragraphs 50 to 52 of the Settlement, the balance of the Compensation payable by the Bank, i.e. $1,888,290.62, minus the publication costs for the Notice of Hearing to Approve the Settlement set out in paragraph 25 of the Settlement, will be distributed as Direct Compensation to the Eligible Accounts of the Members, in accordance with the terms set out in paragraphs 15 to 20 of the Settlement; […]

XI. FEES AND DISBURSEMENTS OF OPTION CONSOMMATEURS’ ATTORNEYS 50.

During the Hearing to Approve the Settlement , Option consommateurs ' Attorneys will make their representations before the Court to the effect that the $662,500 amount plus GST (5%) and PST (9.975%), for a total of $761,709.38. as legal fees and extrajudicial cos t s and disbursements incurred and t o be incurred until the Closing Judgment , represents fair and reasonable remuneration, which r epresents 25% of the compensation and arises from the fee arrangements entered into between Option consommateurs and its attorneys, for the services rendered by Option consommateurs' Attorneys within the framework of the Class Act i ons and the Setllement; 51.

No later than the 20 th day or within a reasonable delay before the Effective Date , Option consommateurs ' Attorneys will provide AMEX with an invoice setting out (

i) the $662 , 500 amount plus GST (5%) and PST (9,975%), f or a total of $761,709 . 38, to be pa i d by AMEX to Option consommateurs' Attorneys as legal fees and extrajudicial costs and disbursements incurred and to be incurred until the Closing Judgment , and (ii) the wire t ransfer informa t ion ; 52. On the Effective Date, AMEX will pay to Option consommateurs ' Attorneys the amount of $662 , 500 plus GST and QST , i.e. $761 , 709 . 38 representing legal fees , extrajudicial costs , expert fees and disbursements that will have been approved by the Court in the Approval Judgment; 53.

In consideration for the payment of these legal fees, extrajudicial costs, expert fees, and disbursements , Option consommateurs' Attorneys will not claim from the Bank or from the Members o f the Groups any other fee or disbursement , of any nature or source whatsoever , directly or indirec t ly , and will not charge any other percentage on the Compensation; […] XVI. FINAL PROVISIONS 67. The Settlement and its Schedules constitute the complete and full Settlement between the Parties; […] 69.

The Settlement constitutes a full and final settlement of all disputes between the Parties and the Members with regard to the Class Actions and constitutes a transaction within the meaning of Articles 2631 and following of the Civil Code of Quebec ; […] 71.

The Settlement settles all Class Actions and must be considered as an inseparable and indivisible whole and any and all clauses are intrinsically linked and dependent on each other; […] IN WITNESS WHEREOF, OPTION CONSOMMATEURS, THE BANK AND THEIR RESPECTIVE ATTORNEYS HAVE SIGNED : September 14 th , 2016 OPTION CONSOMMATEURS AMEX BANK OF CANADA Plaintiff Defendant SYLVESTRE FAFARD PAINCHAUD OSLER, HOSKIN & HARCOURT Attorneys for Plaintiff Attorneys for Defendant BGA AVOCATS S.E.N.C.R.L. Attorneys for Plaintiff in the St-Pierre Class Action

SCHEDULE 2 CTB Transaction [TRANSLATION] III SCOPE AND EXTENT OF THE SETTLEMENT […] 3. The Settlement is conditional upon its approval in its entirety by the Court, otherwise the Settlement will be deemed null and void and will not give rise to any right or obligation in favour of or against the Parties, Designated Person and Members of the Group. […] V. FINANCIAL COMPENSATION BY CT BANK 9.

After deduction of the fees of Option consommateurs’ Attorneys and the applicable taxes, i.e. $431,156.25 calculated in accordance with the terms set out at paragraphs 47 to 49 of the Settlement, the balance of the Compensation payable, i.e. $1,068,483.75 in capital, interest and fees, will be distributed as direct compensation to the Eligible Accounts of the Members, in accordance with the terms set out at paragraphs 13 to 19 of the Settlement; […] XI. FEES AND DISBURSEMENTS OF OPTION CONSOMMATEURS’ ATTORNEYS 47.

During the Approval Hearing, Option consommateurs’ Attorneys will make their representations before the Court to the effect that the amount of $375,000 plus applicable taxes ($56,156.25) as legal fees and extrajudicial costs and disbursements incurred and to be incurred until the Closing Judgment represents fair and reasonable remuneration, which represents 25% of the Compensation and arises from the fee agreements entered into between Option consommateurs and its attorneys for the services rendered by Option consommateurs’ Attorneys within the framework of the Class Action and the Settlement; 48.

On the Date of Payment of the fees and disbursements, CT Bank will pay Option consommateurs’ Attorneys the amounts set out at paragraph 47 representing the legal fees and extrajudicial costs, the taxes and disbursements which will have been approved by the Court in the Approval Judgment; 49.

In consideration for the payment of these legal fees and extrajudicial costs, disbursements and taxes, Option consommateurs’ Attorneys will not claim from CT Bank or the Members of the Group any other fee or disbursement of any nature or source whatsoever, directly or indirectly, and will not charge any other percentage on the Compensation; […] XV. FINAL PROVISIONS 63. The Settlement and its Schedules constitute the complete and full Settlement between the Parties; […] 65.

The Settlement constitutes a full and final settlement of all disputes between the Parties and the Group Members which are the object of the release set out at paragraph 56 of the Settlement and constitutes a transaction within the meaning of articles 2631 and following of the Civil Code of Québec ;

[…] 67. The Settlement settles the Class Action and must be considered as an inseparable and indivisible whole and any and all clauses are intrinsically linked and dependant on each other; […] IN WITNESS WHEREOF, OPTION CONSOMMATEURS, THE REPRESENTATIVE PLAINTIFF MONIQUE DESJARDINS-EMOND AND CANADIAN TIRE BANK AS WELL AS THEIR RESPECTIVE ATTORNEYS HAVE SIGNED: SIGNED August 1, 2016 SIGNED July 29, 2016 OPTION CONSOMMATEURS CANADIAN TIRE BANK By: « Signed after having read the attached English translation of this agreement »

SIGNED August 1, 2016 SIGNED July 29, 2016 SYLVESTRE FAFARD PAINCHAUD CANADIAN TIRE BANK By: « Signed after having read the attached English translation of this agreement »

SCHEDULE 3 Scotia-PCB transaction [TRANSLATION] SCOPE AND EXTENT OF THE SETTLEMENT […]

3. The Settlement is conditional upon its approval in its entirety by the Court, otherwise the Settlement will be deemed null and void and will not give rise to any right or obligation in favour of or against the Parties, the Designated Persons and the Group Members; […] FINANCIAL COMPENSATION BY THE BANKS 8.

From the Remaining Balance paid by the President’s Choice Bank, after deduction of the fees of Option consommateurs’ Attorneys, i.e. $100,603.13 calculated in accordance with the terms set out at paragraph 40 of the Settlement, and after deduction of the amounts to be paid to the Fonds d’aide, i.e. $137,168.28 calculated in accordance with the terms set out at paragraph 44, the balance of the Remaining Balance payable by President’s Choice Bank, i.e. $112,228.59, will be distributed as follows, by equal payments to the following microcredit organisations: […] 9.

From the Remaining Balance paid by Scotia Bank, after deduction of the fees of Option consommateurs’ Attorneys, i.e. $143,178.75 calculated in accordance with the terms set out at paragraph 41 of the Settlement, and after deduction of the amounts to be paid to the Fonds d’aide, i.e. $178,140.63 calculated in accordance with the terms set out at paragraph 45, the balance of the Remaining Balance payable by Scotia Bank, i.e. $178,140.62, will be distributed as follows, by equal payments to the following non-profit microcredit organisations: […] FEES AND DISBURSEMENTS OF OPTION CONSOMMATEURS’ ATTORNEYS 40.

During the Approval Hearing, Option consommateurs’ Attorneys will make their representations before the Court to the effect that, in the case of the President’s Choice Bank, the amount of $87,500 plus GST (5%) and PST (9.975%), for a total of $100,603.13 as legal fees and extrajudicial costs and disbursements incurred and to be incurred until the Closing Judgment, represents fair and reasonable remuneration, which represents 25% of the Remaining Balance ($350,000) and arises from the fee agreement entered into between Option consommateurs and its Attorneys for the services rendered by Option consommateurs’ Attorneys in the framework of the Class Action and the Settlement and the President’s Choice Bank will support these representations; 41.

During the Approval Hearing, Option consommateurs’ Attorneys will make their representations before the Court to the effect that, in the case of Scotia Bank, the amount of $125,000 plus GST (5%) and PST (9.975%) for a total of $143,718.75 as legal fees and extrajudicial costs and disbursements incurred and to be incurred until the Closing Judgment, represents fair and reasonable remuneration, which represents 25% of the Remaining Balance ($500,000) and arises from the fee agreement entered into between Option consommateurs and its Attorneys for the services rendered by Option consommateurs’ Attorneys in the framework of the Class Action and the Settlement, and Scotia Bank will support these representations; 42.

On the Date that the Remaining Balance is paid, the President’s Choice Bank will pay Option consommateurs’ Attorneys $100,603.13 and Scotia Bank will pay Option consommateurs’ Attorneys $143,718.75, representing the legal fees and extrajudicial costs, expert fees and the disbursements that will have been authorised by the Court in the Approval Judgment. 43.

In consideration for the payment of these legal fees and extrajudicial costs, expert fees and disbursements, Option consommateurs’ Attorneys will not claim from the Banks or the Group Members any other fee or disbursement, of any nature or source whatsoever, directly or indirectly, and will not charge any other percentage on the Compensation; […] FINAL PROVISIONS 57. The Settlement and its Schedules constitute the complete and full Settlement between the Parties to the Settlement; […] 59.

The Settlement constitutes a full and final settlement of all disputes between the Parties to the Settlement and the Members with regard to the Class Action and the common questions set out in the judgments authorising the class actions dated October 25, 2007, and as amended by the judgments rendered October 27, 2010, and constitutes a transaction within the meaning of Articles 2631 and following of the Civil Code of Québec ; […] 61.

The settlement settles all Class Actions involving President’s Choice Bank and Scotia Bank and must be considered as an inseparable and indivisible whole and all of its clauses are intrinsically linked and dependent on each other; IN WITNESS WHEREOF, OPTION CONSOMMATEURS, THE DESIGNATED PERSONS AND THE BANKS AND THEIR RESPECTIVE ATTORNEYS HAVE SIGNED: August 1, 2016 July 22, 2016 OPTION CONSOMMATEURS BANQUE LE CHOIX DU PRÉSIDENT

Plaintiff Defendant August 1, 2016 July 22, 2016 SYLVESTRE FAFARD PAINCHAUD Scotia Bank S.E.N.C.R.L. Defendant Attorneys for the Plaintiff July 25, 2016 BORDEN LADNER GERVAIS Attorneys for the Defendants

SCHEDULE 4 CIBC Transaction IlI. SCOPE AND EXTENT OF THE SETTLEMENT […] 3. The Settlement is conditional upon its approval in its entirety by the Court, otherwise the Settlement will be deemed null and void and will not give rise to any right or obligation in favour of or against the Parties, Designated Persons , and Members of the Groups ;

[…] 5 . At the Hearing to Approve the Settlement. Opt i on consommateurs and the Bank will present a motion for permission to amend in order to modify the group 's cut-off date i n the Corriveau and Lamoureux Class Actions so tha t it coincides with the Date of Notice of Hearing to Approve the Settlement; 6 . Option consommateurs and Option consomma t eurs' Attorneys agree to present the Motion for Autorization for sett l ement purposes only against CIBC; 7.

The obtaining of the authorization provided for in paragraph 6 above is an essential condition of the Settlement, failing which the Settlemen t, at the Bank ' s discretion, will be null and void and w i ll not g i ve r ise to any r i ght or ob li gation i n favour of or against t he Parties; IV. FACTS AND CONSIDERATIONS UNDERLYING THE SETTLEMENT 8 . The tacts and considerations underly i ng the Settlement and justifying the agreement signed between the Parties as evidenced by the Settlement are as follows: […] f .

The Bank has ceased the practice impugned in the Lamou r eux Class Action (the unilateral credit limit increases) since January 1, 2010; […] V. FINANCIAL COMPENSATION BY THE BANK 10. The Bank will pay a Compensat i on in an amount of $4,250,000 in full settlement ( capital , interest, additional i ndemnity , taxes , and all fees and costs o f any natu r e whatsoever) of all claims; 11.

After deduction of the fees of Option consommateurs' Attorneys, i.e . $1,221,609.36 calculated in accordance with the terms set out in paragraphs 50 to 52 of the Settlement, the balance of the Compensation payable by the Bank , i.e . $3,028,390.64 , minus the publication costs for the Notice of Hearing to Approve the Settlement set out at paragraph 25 of the Settlement, will be distributed as Direct Compensation to the Eligible Accounts of the Members , in acco r dance with the terms set out in paragraphs 15 to 20 of the Settlement ; [ …] Xl . FEES AND DISBURSEMENTS OF OPTION CONSOMMATEURS' ATTORNEYS 50 .

During the Hearing to Approve the Settlement, Option consommateurs ' Attorneys will make their representations before the Court to the effect that the $1,062,500 amount plus GST (5%) and PST (9 , 975%) , for a total of $1,221,609 . 36, as legal fees and extra j udicial costs and disbursements incurred and to be incurred until the Closing Judgment, represents fair and reasonable remuneration, which represents 25% of the compensation and arises from the fee arrangements entered into between Option consommateurs and its attorneys, for the services rendered by Option consommateurs' Attorneys within the framework of the Class Actions and the Settlement; 51.

On the Effective Date, CIBC will pa y to Option consommateurs' Attorneys the amount of $1,062,500 plus GST and QST, i.e. $1,221,609.36 representing legal fees, extrajudicial costs, expert fees and disbursements that will have been approved by the Court in the Approval Judgment ; 52.

In consideration for the payment of these legal fees, extrajudicial costs, expert fees, and disbursements, Option consommateurs ' Attorneys will not claim from the Bank or from the Members of the Groups any other fee or disbursement, of any nature or source whatsoever , directly or indirectly, and will not charge any other percentage on the Compensation ; […] XVI. FINAL PROVISIONS 66 . The Settlement and its Schedules constitute the complete and full Settlement between the Parties : […] 68 .

The Settlement constitutes a full and final settlement of all disputes between the Parties and the Members with regard to the Class Actions and constitutes a transaction within the meaning of Articles 2631 and following of the Civil Code of Québec ; […] 70. The Settlement settles all Class Actions and must be considered as an inseparable and indivisible whole and any and all of its clauses are intrinsically linked and dependent on each other; […] IN WITNESS WHEREOF, OPTION CONSOMMATEURS, THE BANK AND THEIR RESPECTIVE ATTORNEYS HAVE SIGNED :

September ___, 2016 OPTION CONSOMMATEURS CANADIAN IMPERIAL BANK OF Plaintiff / Petitioner COMMERCE Defendant / Respondent SYLVESTRE FAFARD PAINCHAUD STIKEMAN ELLIOT LLP S.E.N.C.R.L. Attorneys for Defendant / Respondent Attorneys for Plaintiff BGA AVOCATS S.E.N.C.R.L. Attorneys for Petitioner in the St-Pierre Class Action