Meeking v. Cash Store Inc. et al., 2014 MBCA 69

Citation: Meeking v. Cash Store Inc. et al., 2014 MBCA 69 Date: 20140707 Docket: AI 13-30-08061 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : SCOTT MEEKING, AS ) REPRESENTATIVE PLAINTIFF ) J. Beitchman ) for the Applicants (Plaintiff) Respondent ) ) G. M.

Wood - and - ) for the Respondent ) THE CASH STORE INC., ) Chambers motion heard: 1152919 ALBERTA LTD. carrying on ) January 29, 2014 business as INSTALOANS, and THE ) CASH STORE FINANCIAL SERVICES ) Decision pronounced: INC. ) July 7, 2014 (Defendants) Applicants ) STEEL J.A. [ 1 ] The defendants seek leave to appeal the order of the motion judge certifying this claim as a class proceeding under The Class Proceedings Act , C.C.S.M., c. C130 (the CPA ). [ 2 ] The defendants argue that the motion judge erred in three ways.

The three proposed grounds of appeal are as follows: 1. the motion judge erred in certifying a non-resident class on an opt-out basis without regard to the impact of this court’s decision in Meeking v.

Cash Store Inc. et al ., 2013 MBCA 81 , 299 Man.R. (2d) 109 ( Meeking 2013 ); 2. the motion judge erred in finding that the plaintiff’s statement of claim justified piercing the corporate veil or disclosed a cause of action against The Cash Store Financial Services Inc. (CSF); and 3. the motion judge erred in finding that the alleged breach of the Criminal Code (the Code ) through receipt of interest at a criminal rate is a common issue or that a class action is the preferable procedure. Facts [ 3 ] The defendant, CSF, is a provider of financial products and services in Canada, including in Manitoba.

The defendant, The Cash Store Inc., is a wholly-owned subsidiary of CSF. The defendant, 1152919 Alberta Ltd. carrying on business as Instaloans, is a wholly-owned subsidiary of The Cash Store Inc. CSF operates, through its subsidiaries, over 560 branches in over 200 communities in every province and territory in Canada, except Quebec. [ 4 ] The Cash Store Inc. and Instaloans offer loans and other financial services to customers as an alternative to traditional lending institutions. These loans are short-term for relatively small sums, in amounts less than $1,000.

The Cash Store Inc. and Instaloans offer three different short-term loan products: “payday loans,” “signature loans,” and “title loans.” Payday loans require the customer to have a pay cheque against which the loan is advanced and they are due on the customer’s next payday. Signature loans advance loan funds against a customer’s source of income, other than a pay cheque, such as pension benefits or employment insurance, and are usually due approximately 30 days after the loan is advanced. Title loans are secured by a registration under The Personal Property Security Act , C.C.S.M., c.

P35, against a customer’s vehicle with an ordinary term of approximately 30 days. [ 5 ] Nearly all of the loans obtained by The Cash Store Inc. and Instaloans customers are provided by independent, third- party lenders using The Cash Store Inc. or Instaloans as a loan broker. The Cash Store Inc. and Instaloans generate their revenues from the brokerage fees they charge. [ 6 ] Scott Meeking (Meeking) is a customer of The Cash Store Inc. and Instaloans.

Between June 22, 2005 and November 1, 2010, Meeking borrowed from The Cash Store Inc. or Instaloans 79 times, 13 of those loans taking place after April 23, 2010, the date

that the statement of claim was filed. The statement of claim alleges that the defendants entered into agreements to receive and did receive interest at a criminal rate contrary to s. 347(1) of the Code . [ 7 ] Meeking moved for an order certifying the above action as a class proceeding pursuant to s. 4 of the CPA , and to appoint himself as the representative plaintiff.

His claim that brokerage fees charged and collected by the defendants in Manitoba were contrary to s. 347(1) of the Code , is confined to loans advanced prior to October 18, 2010. [ 8 ] This claim was preceded by other proceedings brought as class actions in British Columbia, Ontario and Alberta, advancing similar claims in respect of brokerage fees collected in the defendants’ short-term business, on the basis that these fees are prohibited by s. 347(1) of the Code . See Bodnar v. The Cash Store Inc. , 2005 BCSC 1228 (QL), aff’d 2006 BCCA 260 , 227 B.C.A.C. 109; McCutcheon v.

The Cash Store Inc. (2006), 2006 CanLII 15754 (ON SC) , 80 O.R. (3d) 644; and Tschritter v. Rent Cash Inc. , 2004 ABQB 590 , 2 B.L.R. (4th) 309. All of these actions have been certified. Both the British Columbia and Ontario proceedings have been settled pursuant to court-approved settlements. [ 9 ] This certification application was heard together with a motion by the defendants to enforce the 2008 Ontario court- approved settlement arising out of the McCutcheon case. See McCutcheon v. The Cash Store Inc. et al. , Court File No. 06-CV- 319400CP00.

That Ontario order approved the settlement of a class proceeding against the defendants in respect of loans borrowed in Ontario and several other provinces, including Manitoba. The effect of the Ontario order was to extinguish any claims in relation to loans borrowed from the defendants in Manitoba prior to December 2, 2008, unless those Manitoba residents had filed an opt-out form. [ 10 ] The motion judge held that the Ontario Superior Court of Justice had jurisdiction to determine the rights of Manitoba borrowers concerning Manitoba loans borrowed from the defendants.

However, he also held that, while the Ontario settlement should be recognized and enforced in Manitoba for some purposes, the notice given in the Ontario settlement was inadequate to support its enforcement in Manitoba in respect of any loans borrowed from Instaloans stores, or signature or title loans borrowed from The Cash Store Inc. See Meeking v. Cash Store Inc. et al . , 2012 MBQB 58 , 276 Man.R. (2d) 142. That decision of the motion judge was appealed to this court and the appeal was dismissed. See Meeking v.

Cash Store Inc. et al . , 2013 MBCA 81 , 299 Man.R. (2d) 109, leave to appeal to S.C.C. granted (February 27, 2014). [ 11 ] The motion judge then granted the order of certification finding that the plaintiff satisfied the statutory requirements for certification as set out in s. 4 of the CPA . Decision of the Certification Judge [ 12 ] In his certification decision, the motion judge created two subclasses for loans; one subclass for loans borrowed before December 2, 2008, and one for loans after that date.

The subclass for loans before December 2, 2008, applied to Manitoba residents who borrowed a payday loan from Instaloans or signature or title loans from either The Cash Store Inc. or Instaloans, but excluded any other loans that were the subject of a claim under the settlement reached in McCutcheon .

He certified that class because, as indicated above, he declined to recognize and enforce the settlement judgment issued in McCutcheon that included class members resident in Manitoba because he determined that the notice plan was unfair to Manitoba residents on the basis that the heading and body of the notice omitted the word “Instaloans” and did not adequately identify signature or title loans and, therefore, was likely to have confused class members. [ 13 ] For loans borrowed after December 2, 2008, the motion judge certified a class including non-resident class members on an opt-out basis.

Criteria for Leave to Appeal [ 14 ] An appeal from a certification decision under the CPA lies to the Court of Appeal with leave (see s. 36(4) of the CPA ). The parties agreed that the test that must be met on a successful leave motion was set out in Pelchat v. Manitoba Public Insurance Corp ., 2006 MBCA 90 , 40 C.C.L.I. (4th) 46. So, the case must be one that warrants the attention of the court.

Cases that warrant the attention of the court will generally be those which are significant, not just for the immediate case or to the individual litigants, but in determining similar disputes which are likely to arise in the future and are important to the public at large. [ 15 ] As well, there must be an arguable case of substance; one with a reasonable prospect of success. Yet the standard is not so high that the judge hearing the motion must be persuaded that the order in question is wrong, or even probably wrong. See Winnipeg Airports Authority Inc. v.

EllisDon Corp. , 2011 MBCA 51 at paras. 18-21 , 268 Man.R. (2d) 66. [ 16 ] While Pelchat was not a class proceeding, in the case of Soldier v. Canada (Attorney General) , 2007 MBCA 153 , 225 Man.R. (2d) 101, Monnin J.A. considered whether subsequent jurisprudence has altered the test from Pelchat as it is applied in the class action context and he determined that it has not (at para. 6): … I have not been persuaded that this court’s decision in Walls et al. v.

Bayer Inc. (2005), 2005 MBQB 3 (CanLII) , 189 Man.R. (2d) 262 ; 2005 MBQB 3, affd. (2005), 2005 MBCA 93 (CanLII) , 195 Man.R. (2d) 293 ; 15 C.P.C. (6th) 377; 2005 MBCA 93, has substantially altered the test for obtaining leave to appeal as set out in Pelchat simply because leave to appeal is being sought in a class action proceeding. [ 17 ] While the plaintiff does not contest the test as described in Pelchat and Soldier , it submits that “Justice Kroft’s reasons in Walls [ Walls et al. v.

Bayer Inc ., 2005 MBCA 93 , 195 Man.R. (2d) 293] helpfully frame the general approach to motions for leave to appeal from certification.” The plaintiff points out that this court in Walls cited, with approval, a judgment of the Newfoundland Court of Appeal which pointed out that a certification order is an interlocutory procedural order and consequently leave from such orders should be granted sparingly. See Pardy et al. v. Bayer Inc. , 2005 NLCA 20 , 246 Nfld. & P.E.I.R. 157.

[ 18 ] Generally, this court’s position with respect to interlocutory orders, since leave is not required, has been to quash the appeal when it is heard. As Chartier J.A. (as he then was) stated in Canada (Attorney General) v. Courchene , 2010 MBCA 6 (at para. 3 ): This court has repeatedly stated that, save in exceptional circumstances, interlocutory appeals from rulings made by the trial judge should not be permitted …. …. [ 19 ] I agree that a certification decision is a procedural decision, which is not final and is not a finding on the merits of the case.

It is an interlocutory order that may be amended, varied or set aside at any time. However, it is important to note when considering cases from other provinces that, unlike some provinces, in particular Newfoundland, Manitoba does not have a statutory provision requiring leave to appeal from interlocutory decisions. So, for example, Newfoundland has a statutory test for leave to appeal from interlocutory orders. See Newfoundland, Rules of the Supreme Court , 1986 , Rule 57.02. This statutory test provides the context to the Newfoundland decisions. See also Anderson et al. v.

Canada (Attorney General) , 2011 NLCA 82 , 315 Nfld. & P.E.I.R. 314. [ 20 ] As well, not only was Walls decided before Pelchat , but in Walls , Kroft J.A. confirms that the standard for granting leave to appeal should include an issue that has a reasonable prospect of success and is of sufficient public importance to merit appellate consideration. [ 21 ] Thus, the test for leave to appeal from a certification decision in this province is still the test arising from Pelchat and Soldier . It is not a test specifically created for leave to appeal from interlocutory decisions.

However, the nature of the order will certainly colour the deliberations. For example, a certification order requires the motion judge to exercise substantial discretion in making a determination. Such discretion generally engages a level of deference from this court. [ 22 ] Moreover, there are different effects from a grant or refusal of certification.

A refusal to certify means the end of the possibility of a class action, while the grant of certification is not final. (See s. 10(1) of the CPA which provides that “at any time after a certification order is made, the court may amend the order, decertify the proceeding or make any other order it considers appropriate.”) Analysis and Decision 1.

Is there an arguable case that the motion judge erred in certifying a non-resident class on an opt-out basis without regard to the impact of the Court of Appeal’s decision in Meeking 2013 ? [ 23 ] The motion judge determined that for loans borrowed after December 2, 2008, non-resident plaintiffs can participate in this class proceeding on an opt-out basis. [ 24 ] The defendants submit that this was an error in law as it failed to fully consider the recent decision of this court in Meeking 2013 .

That case upheld the motion judge’s earlier decision that the Ontario Court’s judgment approving of the nature of the notice in McCutcheon breached the requirements of order and fairness for the recognition and enforcement of an extra-provincial judgment and, therefore, did not bind Manitoba residents.

On this basis, the motion judge declined to enforce parts of the Ontario judgment against Manitoba residents and this court affirmed his decision. [ 25 ] The defendants argue that this appellate decision has substantially affected the legal requirements for recognition and enforcement of an extra-provincial judgment, and correspondingly affected the appropriateness of certifying an opt-out class proceeding that binds non-resident class members.

It is submited that the motion judge erred in failing to address the propriety of binding non- resident class members in the context of the “new standard set by this court.” [ 26 ] In fact, the defendants go further and submit that in light of the “new standard” for the recognition and enforcement of class proceedings in sister provinces, it is no longer appropriate to certify class proceedings purporting to bind non-resident class members on an opt-out basis. [ 27 ] The defendants refer to the decision of this court as constituting a new standard as to what might constitute adequate notice in the context of class proceedings and argue that it has the result of undermining the objectives of access to justice and judicial economy in class proceedings.

They insist that it has that effect because it undermines the certainty and finality normally associated with the resolution of a multi-jurisdictional class proceeding as well as undermining the objective of judicial economy by creating a substantial risk of unnecessary duplication of fact-finding and legal analysis.

As the defendants submit: “If a defendant cannot rely on the resolution of a multi-jurisdictional class proceeding duly supervised by the Court of a province within the Canadian federation, then how can any defendant be assured of certainty and finality of that resolution?” [ 28 ] In short, it is obvious that they do not like the decision. In fact, the Supreme Court of Canada has granted leave with respect to this decision and it may be that it will turn out that the motion judge and this court were wrong in not recognizing the Ontario settlement as binding on Manitoba residents.

In any case, that issue will be decided shortly by the Supreme Court of Canada. This is not the forum to decide that issue or re-litigate it. [ 29 ] The motion judge clearly had jurisdiction to include non-residents in the class on an opt-out basis, based on this court’s decision and on ss. 6(3) and 16 of the CPA , which permits the court to certify an extra-provincial class on an opt-out basis.

Indeed, the defendants do not suggest that the motion judge did not have the jurisdiction to define the class as he did. [ 30 ] Instead, they take the position that the motion judge did not exercise his discretion appropriately when he certified the class on an opt-out basis because he did not adequately consider the ramifications of the affirmation of his decision in this court.

[ 31 ] I disagree.

After the motion judge released his decision regarding the enforcement of the Ontario settlement (the Enforcement Decision), but before he made his decision in regard to the certification of these class proceedings, he held a further case management conference at which he requested further submissions from the parties as to the appropriate class definition for the proposed class proceeding, if it were certified, in light of his Enforcement Decision. [ 32 ] In those submissions, the defendants proposed that for loans borrowed after December 2, 2008, non-residents be included in the class on an opt-out basis.

In July 2012, the motion judge then requested further written submissions specifically on the issue of whether and to what extent non-residents should be included in the class proceeding, if it were certified. In these submissions, the defendants now proposed that the class definition for loans borrowed after December 2, 2008, include non-residents on an opt-in basis. The motion judge then issued his decision certifying the action on an opt-out basis. [ 33 ] Given the above, it can hardly be said that he did not carefully consider both sides.

Indeed the defendants seem to have changed their position from one submission to another.

They were certainly entitled to do so, but, on the other hand, given the written submissions and considerations and the standard of deference, I do not agree with the defendants that the motion judge did not adequately consider whether the class should have included residents on an opt-out basis in light of this court’s affirmation of his Enforcement Decision or that the exercise of his discretion on this point raises an arguable issue of substance for this court to consider. [ 34 ] This court will only interfere with the motion judge’s exercise of discretion where he has misdirected himself on the law, misapprehended the facts or the decision is so clearly wrong as to amount to an injustice.

The CPA contemplates that an extra-provincial class will be defined on an opt-out basis. In certifying such a class, the motion judge referred to the public interest in minimizing lawsuits and extending the benefits of the class proceeding to residents in other provinces. These are plainly legitimate objectives of a class proceeding and it cannot be said that the motion judge was clearly wrong in certifying an extra-provincial class on an opt-out basis to give effect to these considerations. 2.

Is there an arguable case that the motion judge erred in finding that Meeking’s statement of claim justified piercing the corporate veil or disclosed a cause of action against CSF? [ 35 ] The motion judge held that the statement of claim made allegations that, if proven, were sufficient to pierce the corporate veil and attribute the actions of The Cash Store Inc. or Instaloans to CSF.

The defendants submit that the motion judge erred in law by misunderstanding the requisite elements of the test to pierce the corporate veil. [ 36 ] The defendants argue that the test for piercing the corporate veil in Canada requires that the plaintiff prove that, among other things, a subsidiary corporation was incorporated for a fraudulent or improper purpose or used by the parent as a shield for improper activity. See Abener Energia, S.A. v. Sunopta Inc. , 2010 ONCA 57 (QL).

While the statement of claim alleges that CSF exercised control over the subsidiary companies, it makes no allegations of a fraudulent or improper purpose or incorporation for the purpose of avoiding liability. It merely suggests a relationship of control between the parent and subsidiary which, the defendants submit, is not sufficient to pierce the corporate veil. [ 37 ] In his reasons, the motion judge carefully considered the statement of claim. As he pointed out, citing this court’s decision in Soldier v.

Canada (Attorney General) , 2009 MBCA 12 at paras. 41-42 , 236 Man.R. (2d) 107, when determining whether the statement of claim discloses a cause of action as required by subs. 4(

a) of the CPA , the threshold the plaintiff must cross is low. The plaintiff’s claim can proceed unless it is “plain and obvious” that it cannot succeed. It is correct that there must be some air of reality to the cause of action pleaded. It cannot be entirely speculative. However, it is the substance of the pleadings that must be considered. While the plaintiff bears the onus of demonstrating that the pleadings disclose a cause of action, the pleadings must be read as generously as possible. At this stage, evidence is not considered and the court considers that all facts alleged in the pleadings are true.

See Hunt v. Carey Canada Inc. , 1990 CanLII 90 (SCC) , [1990] 2 S.C.R. 959, and Pro-Sys Consultants Ltd. v. Microsoft Corporation , 2013 SCC 57 at para. 63 , [2013] 3 S.C.R. 477. [ 38 ] The plaintiff pled that CSF directed The Cash Store Inc. and Instaloans to advance loans on terms that were contrary to s. 347(1) of the Code in order to earn a profit on the loans for the benefit of CSF.

The motion judge held that directing a subsidiary to commit a criminal act for profit, for the benefit of the parent company, could constitute using the company for an improper purpose or activity and that these allegations were arguably sufficient to pierce the corporate veil and to attribute the actions of The Cash Store Inc. and Instaloans to their parent corporation. [ 39 ] These same kind of allegations were held sufficient to support a claim of joint and several liability against CSF in the class proceedings brought against the defendants in Alberta. See Tschritter at paras. 14-19 .

Similar allegations were held sufficient to support a claim of joint and several liability against the individual controlling shareholder of a payday loan business in Ayrton v. PRL Financial (Alta.) Ltd. et al. , 2005 ABQB 311 at paras. 19-32 , 370 A.R. 141, aff’d 2006 ABCA 88 , 384 A.R. 1, and against the parent company in class proceedings brought in British Columbia and Ontario concerning the operation of the Money Mart payday loan business; MacKinnon v. National Money Mart Co. , 2008 BCCA 292 , 295 D.L.R. (4th) 304.

Finally, these very same claims were sufficient to establish joint and several liability on the part of the individual controlling shareholders of a group of payday loan companies, at the trial on the merits of the common issues in a class proceeding involving the operation of the Instaloans business before it was acquired by the defendants; Tracy v. Instaloans Financial Solution Centres (B.C.) Ltd. , 2008 BCSC 669 , 293 D.L.R. (4th) 60, aff’d 2009 BCCA 110 , 268 B.C.A.C. 83. [ 40 ] In any case, the plaintiff also claimed against the corporate defendants separately, alleging that each was unjustly enriched.

This cause of action constitutes a separate basis of liability and does not depend on piercing the corporate veil. Accordingly, the motion judge held “the pleadings are sufficient to establish a cause of action against each of the defendants independently, regardless of the corporate veil issue” (at para. 19). [ 41 ] The defendants submit that the motion judge also erred in his

interpretation of the elements necessary to plead unjust enrichment because the statement of claim does not plead a direct nexus between an enrichment of CSF and any alleged deprivation of

the plaintiff.

There is no direct nexus between the plaintiff’s payment of the loan fees and CSF since the loan fees are fees charged by The Cash Store Inc. and Instaloans as brokers pursuant to a loan contract to which CSF is not a party; CSF does not receive any portion of the interest charged for the loan. [ 42 ] This argument ignores that the statement of claim alleges that; “Loan fees received by the Brokers were paid in whole or in part to CSF.” As a result, the motion judge concluded that the statement of claim does allege a direct nexus. [ 43 ] As well, I agree with the plaintiff that courts have held that the payment of loan fees collected in the operation of a payday loan business by the operating entity to its parent company is sufficient to support a claim of unjust enrichment against the parent company (see Bodnar ; MacKinnon ; Smith v.

National Money Mart Co. (2006), 2006 CanLII 14958 (ON CA) , 80 O.R. (3d) 81; and Tracy at paras. 58-62. [ 44 ] Further, the Supreme Court of Canada has held that the authorities do not necessarily foreclose a claim in unjust enrichment where the relationship between the parties is indirect and that “it cannot be said that it is plain and obvious that a claim in unjust enrichment should fail at the certification stage on this ground alone” ( Sun-Rype Products Ltd. v.

Archer Daniels Midland Company , 2013 SCC 58 at para. 36 , [2013] 3 S.C.R. 545). [ 45 ] The same argument is made by the defendants with respect to the tort of conspiracy. The elements of the tort of unlawful conduct conspiracy are that the parties act in combination, that their conduct is unlawful, that their conduct is directed towards the plaintiff, that the parties should know that, in the circumstances, injury to the plaintiff is likely to result and that their conduct does in fact cause injury to the plaintiff.

The defendants argue that in this instance, it is plain and obvious that, if the other claims in the action fail, the claim of conspiracy will fail because in that event the conduct of CSF could not be considered unlawful and the second element of the tort would not be made out. [ 46 ] I do not believe that there is an arguable case that the motion judge erred in allowing this claim to proceed.

If it is established that the loan fees collected in the operation of the payday loan business were unlawful, then that is unlawful conduct which would provide a separate basis upon which CSF could be held liable for the illegal acts committed by its subsidiaries at its direction.

In Smith , the Ontario Court of Appeal rejected the arguments that there could be no conspiracy between a subsidiary and a parent or that any claim in conspiracy would merge with the claims of unjust enrichment advanced against the parent of Money Mart concerning its receipt of some of the unlawful loan fees collected in the operation of the payday loan business. [ 47 ] With respect generally to all of the defendants’ arguments in regard to the sufficiency of the pleadings, I can do no better than to adopt the argument of the plaintiff when he states: The Defendants’ position on this application for leave is that there is an arguable case of substance that each and all of these courts in Alberta, B.C. and Ontario, which have certified and even determined virtually identical claims in other payday loan actions, some against these same Defendants, were wrong in law to do so, as was the Motion Judge in following these previous decisions.

The Plaintiff says that in light of this extensive jurisprudence dealing with the certification of payday loan class proceedings, there is no reasonable prospect that this Court will conclude that it is plain and obvious that the claims of joint and several liability, unjust enrichment and conspiracy made against Cash Store Financial are bound to fail. 3.

Is there an arguable case that the motion judge erred in finding that the alleged breach of the Code through receipt of interest at a criminal rate is a common issue or the preferable procedure? [ 48 ] The defendants argue that the motion judge failed to acknowledge that assessment of any alleged breach of s. 347(1) of the Code would require an individual investigation into the voluntariness of each transaction with each class member.

The defendants argued in their motion brief that there is no breach or liability for receipt of criminal interest where a payment of interest at a criminal rate arises from a voluntary act of the debtor. Therefore, in this action there would have to be a determination in each case whether the payment of interest was voluntary and these issues cannot be determined fairly as a common issue. [ 49 ] The defendants did not pursue this issue at the hearing.

Given the fact that it was raised in the brief, I would simply add that this is not an issue that needed to be resolved by the motion judge at the certification hearing. All that is material to the certification application is that the defendants’ assertion, that a borrower’s decision to obtain a loan which requires the payment of a broker fee constitutes a voluntary act within the meaning of Garland v. Consumers’ Gas Co. , 2004 SCC 25 , [2004] 1 S.C.R. 629, raises a question of law. No individual inquiry is necessary to resolve this issue.

It can be determined at the common issues trial on a class-wide basis. [ 50 ] This was the approach taken by the British Columbia Supreme Court concerning the issue of voluntariness in certifying the class action in Bodnar ( 2005 BCSC 1228 ) at paras. 35-36, an approach which was affirmed by the Court of Appeal in Bodnar ( 2006 BCCA 260 ) at para. 12. [ 51 ] In addition to the class proceedings certified against the defendants in Bodnar and McCutcheon , courts in Alberta, British Columbia and Ontario, in class proceedings against other payday loan companies, have repeatedly certified as a common issue whether the collection of loan fees has resulted in the receipt of criminal interest (see Ayrton ). [ 52 ] The defendants also argued in their brief that the motion judge failed, in the preferable procedure analysis, to consider whether a class proceeding was the preferable procedure in this action given the individual issue of assessing the voluntariness of each transaction.

Whether a class action is a preferable procedure is a discretionary decision with a low threshold. See Harrington v. Dow Corning Corp. et al. , 2000 BCCA 605 at para. 68 , 144 B.C.A.C. 51; and Jeffrey et al. v. London Life Insurance Co. et al. (2008), 2008

CanLII 43772 (ON SCDC) , 241 O.A.C. 101 at para. 22 (Div. Ct.). [ 53 ] I see no arguable case of substance to the argument that the motion judge erred in certifying as a common issue whether criminal interest was received through the collection of the loan fees at issue in this case or in deciding that a class proceeding was the preferable procedure. Conclusion [ 54 ] The issues in this case are virtually identical to those already adjudicated in McCutcheon , Tschritter and Bodnar . That is not to say that the courts of this province might not come to a different conclusion.

Indeed, they did so with respect to the question of the adequacy of notice. That issue will be decided by the Supreme Court of Canada in the near future. [ 55 ] However, the fact that the issues raised by the defendants have been addressed by courts in three different provinces to date does give some indication as to whether the arguments advanced by the defendants as to certification, an interlocutory, procedural decision, have a reasonable prospect of success and raise an issue of sufficient importance to warrant a hearing from this court.

With respect to both questions, I say no. [ 56 ] The motion for leave to appeal is dismissed with costs. J.A.