In Sherry v. CIBC Mortgages Inc., the BC Court of Appeal reversed the certification of a class action in part. In the underlying case, the plaintiff alleged that provisions in mortgage contracts which grant discretion to the lender in calculating prepayment charges were void for uncertainty, and unconscionable at common law and in equity and under Business Practices and Consumer Protection Act. The Court held that the chambers judge erred in ruling that reasonable causes of action were disclosed in respect of the enforceability of the subject mortgage contracts, whether they were void for uncertainty, and whether the defendant breached the mortgage contracts or a fiduciary duty by reason of alleged "Miscalculations". The Court did not interfere with the rulings that the claim of unconscionability could proceed as a common issue, or that punitive damages could be pursued as a common issue in the circumstances of this case.
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