Executive Summary: Key Legal and Evidentiary Issues

• Definition and scope of the authorized class action seeking répétition de l’indu for currency conversion fees charged in Québec discount brokerage accounts since 15 March 2018.
• Central allegation that original discount brokerage contracts failed to stipulate the amount of currency conversion fees, allegedly contrary to the Civil Code of Québec and giving rise to restitution of payments made in error.
• Procedural issue whether paragraphs 44, 56, 57, 81 and 82 of the originating application improperly introduce a new cause of action and questions not authorized at the certification stage.
• Comparison between the disclosure of currency conversion fees in the new clauses of Financière Banque Nationale, RBC Placements en direct and Services investisseurs CIBC and those of BMO Ligne d’action, for which authorization was refused.
• Application of article 169 C.p.c. to strike non-pertinent allegations that go beyond the framework of the authorized class action and raise issues such as the “inintelligibility” of new contractual clauses and unilateral changes to spreads without notice.
• Determination that the litigation on the effect of the new clauses and on closing the class period belongs at the merits stage, while the impugned allegations are struck and costs are awarded to the three moving defendants.

Background and parties

The judgment of the Cour supérieure (Chambre des actions collectives) dated 12 February 2026, rendered by the Honourable Pierre Nollet, J.C.S., concerns a class action brought by Nicolas Salko against several discount brokerage firms, including Financière Banque Nationale inc. (« FBN »), RBC Placements en direct inc. (« RBC ») and Services investisseurs CIBC inc. (« CIBC »). The file number is 500-06-001137-211 and the action is proceeding in the district of Montréal.

Mr. Salko has been authorized to institute a class action against the defendants on behalf of a group defined as all natural persons and legal persons residing or having their head office in Québec who are parties to a “contrat de courtage sans conseils” (also known as an execution-only, direct or discount brokerage contract) with one or more of the defendants and from whose brokerage accounts currency conversion fees have been charged since 15 March 2018.

Facts and prior procedural history

The plaintiff alleges that the failure to stipulate in the discount brokerage contract the amount of currency conversion fees charged to members’ brokerage accounts is contrary to the Civil Code of Québec and gives rise to répétition de l’indu. It is alleged that group members paid such fees by error.

On 9 September 2022, Justice Christian Immer (as he then was) rendered a judgment authorizing the class action in part (the « Jugement d’autorisation »). On 30 January 2025, the Cour d’appel maintained the trial judge’s decision. The authorization relates to a cause of action in répétition de l’indu under the Civil Code of Québec with a view to recovering the currency conversion fees.

At the authorization stage, Mr. Salko argued that the currency conversion fees imposed by the defendants were not previously disclosed in the original contractual clauses (« Dispositions originales ») nor were the nature and modalities of those fees disclosed. The defendants argued that there was no cause of action in répétition de l’indu because the original clauses disclosed that clients had to pay the spread between the rate at which the defendants purchased the foreign currency and the rate at which they sold it.

Two former defendants, BMO Ligne d’action inc. (« BMO LA ») and BMO Nesbitt Burns inc. (« BMO NB »), maintained that their agreements disclosed the conversion fees charged, or at least the maximum that could be charged. Justice Immer rejected the positions of the current defendants but accepted those of BMO LA and BMO NB, refusing to authorize the class action against the latter two.

The authorization judgment limited the class action to a single cause of action in répétition de l’indu and to securities discount brokerage services, excluding services of brokerage with advice or portfolio management.

Amendments to brokerage contracts and new clauses

After the authorization judgment, but before the filing of the demande introductive d’instance (« DII ») in April 2025, FBN, RBC and CIBC replaced the original contractual provisions governing currency conversion fees with new provisions that specify the amount of the fees using percentages (« Nouvelles dispositions »).

For FBN, the new wording appears in the “Barèmes des commissions et frais généraux” dated 15 March 2023. It states that each time a currency conversion is necessary, the broker acts as counterparty and is remunerated based on the difference between the price paid by the client for the currency and the price obtained by the broker or related persons for the same currency (the « Écart »). It explains that the applicable exchange rate and the spread vary according to several factors, including market fluctuations, the amount, the date and the nature of the transaction. It also states that the applicable rate and the spread may be modified without notice and indicates that up-to-date information on the applicable spread can be obtained in the “Frais de courtage et tarification” section of FBN’s website or from a representative.

The FBN web page “Tarification” provides a description of the situations in which a currency conversion is necessary and indicates that the applicable exchange rate includes a spread. It states that the spread applied varies according to the amount of the transaction and refers to a table of spreads. Footnotes explain, among other things, that the exchange rate is established by FBN or related persons, that FBN acts as counterparty and is remunerated based on the spread between the price paid by the client and the price obtained by FBN or related persons, and that the spread can be modified without notice.

RBC’s original clause (August 2020) stated that the foreign exchange rate appearing on confirmations and account statements includes the spread from which RBC and its affiliates benefit, that this spread is the difference between the rate obtained by RBC or its affiliates and the rate the client receives, and that the exchange rate and the spread depend on market fluctuations and the amount, date and type of transaction. The new provisions introduced in June 2024 add that up-to-date information on the spread usually applied can be obtained on the web page rbcplacementsendirect.com/tarification or from a representative, and the “Tarification” page includes a table of “écarts applicables” with a note explaining the spread and stating that it can be modified without notice.

CIBC’s original clause provided that in the case of operations in a currency other than that of the account, CIBC or its affiliated parties act as counterparty and may earn revenue based on the spread, in addition to commissions or fees, with the spread based on the difference between bid and ask prices and internal or market counterparty rates. The January 2024 “Nouvelles dispositions” clarify that CIBC and its affiliated parties earn revenues based on spreads, defined as the difference between the rate obtained by CIBC and its affiliates and the rate received by the client, and that the FX spreads can be found on CIBC’s “tarification” web page or by contacting representatives. The “Tarification” page itself includes a table of “écarts applicables” and a note explaining that the spread rates are subject to modification, that CIBC or an affiliate acts as counterparty at a rate established or determined by it, and that CIBC and related parties may earn revenue based on the spread.

Impugned allegations in the originating application

In the DII filed in April 2025, the plaintiff alleges that FBN’s new provisions remain problematic because FBN reserves the right to change the spread “sans préavis,” making any calculation of the fees unpredictable and discretionary and concealing their true nature, and because the explanation of FBN’s remuneration in connection with the fees is incomprehensible for a client who is party to a contract of adhesion, such that the fees continue to be concealed (paragraph 44).

Similar allegations are made concerning CIBC (paragraphs 56 and 57). The plaintiff pleads that the CIBC “Tarification” page provides that the spreads shown are “sujet à modification,” rendering any calculation of the fees unpredictable and discretionary and concealing their true nature unless a clear notice is given, and that the explanation of CIBC’s remuneration in connection with the fees is incomprehensible for a client who is party to a contract of adhesion, so that the fees remain concealed. The DII asserts that CIBC still does not comply with its obligation to disclose the fees.

As for RBC (paragraphs 81 and 82), the plaintiff alleges that the RBC “Tarification” web page provides that RBC may modify the spread “sans préavis,” making any calculation of the fees unpredictable and discretionary and concealing their true nature, and that the explanation of RBC’s remuneration in connection with the fees is incomprehensible for a client who is party to a contract of adhesion, so the fees continue to be concealed. The DII alleges that RBC still does not comply with its obligation to disclose the fees.

FBN, RBC and CIBC apply for the striking (radiation) of these specific allegations, arguing that they introduce a new cause of action, that the authorization judge refused to authorize such a cause, and that the allegations of unintelligibility of the new provisions were never raised at the authorization stage.

Legal principles applied

The court recalls that article 169 of the Code of Civil Procedure governs motions to strike. It provides that a party may request any measure to ensure the proper conduct of the proceeding and may seek the striking of non-pertinent allegations. The current Code gives the court a broader power than the former code, allowing it to render any order necessary for the orderly progress of the case.

In class actions, allegations concerning questions of law or fact not authorized by the authorization judgment fall within the type of allegations that may be struck. The description of the group must remain within the fundamental membership conditions defined by the authorization judgment.

The court notes that the authorized class action is limited to a single remedy in répétition de l’indu and that the authorization judgment restricted the class action to certain companies offering discount brokerage services, excluding those offering advisory brokerage services or portfolio management. At authorization, the defendants argued that specifying the precise conversion rate would only have been relevant to an argument based on section 12 of the Loi sur la protection du consommateur, an argument that was not retained. Justice Immer instead accepted that it was arguable, at authorization, that there was still no mention of a conversion fee and that, notwithstanding the information provided, the fee was not determinable for the client, and that a trial would be required to fully understand the terms used.

Regarding BMO LA, Justice Immer concluded that it was manifestly unsustainable to argue that the BMO LA client pays fees by error or without obligation when advised that the currency conversion would generate a spread of revenue for BMO LA up to 1.6% or 1.75%, and that a client so informed cannot claim error or lack of obligation.

The authorization judge also wrote, concerning the end of the group period, that nothing indicated the practices had ceased or the contracts had been modified and that there was no reason to impose an end date as of the authorization judgment; he indicated that the group would be closed with the judgment on the merits.

Analysis of the new clauses and motions to strike

In relation to FBN, Justice Nollet reviews the original clause and the March 2023 “Nouvelles dispositions,” together with the “Tarification” web page and its footnotes. He notes that the new provisions now stipulate the amount of the fees via the spread and refer to a table of applicable spreads. He states that, based on the record as it stood at authorization, if Justice Immer had been presented with the same question on the basis of FBN’s new provisions, it is open to think that he would have applied the same reasoning as for BMO LA and refused to authorize the class action against FBN. The court notes that the unintelligibility of FBN’s original clauses or those of BMO LA was not part of the debate before the authorization judge and that the common questions do not address it. Justice Nollet holds that if the intelligibility of the new provisions is to be debated, it will be in response to a defence argument by FBN invoking those provisions; in the absence of such a defence, it is unnecessary to debate their intelligibility, which is an additional reason to order the striking of paragraph 44.

The court also observes that the stipulation that the spread may be modified without notice raises a problem of a different nature, relating to the client’s consent to the modification. The judge adds that one cannot presume that such a clause would necessarily be applied “sans préavis” and that this element can also be debated on the merits if the defendants raise the new provisions in defence to close the period covered by the class action.

For RBC, Justice Nollet compares the original August 2020 clause and the new June 2024 wording, as well as the “Tarification” web page and notes. He similarly concludes that, given the record at the time, if Justice Immer had been seized of the same question based on the new RBC provisions, he would have applied the same reasoning as for BMO LA and refused to authorize the class action against RBC. The court notes that the application to strike does not cover paragraphs 78 and 79 of the DII, which introduce the new provisions. Justice Nollet holds that if the intelligibility of the new provisions is to be debated, it will be in response to a defence by RBC raising them as curing the difficulty identified at authorization; otherwise, it is unnecessary to debate their intelligibility. This is an additional reason to strike paragraphs 81 and 82.

Regarding CIBC, the judge compares the original contractual clause and the January 2024 “Nouvelles dispositions” along with the related “Tarification” web page and notes. He states that, based on the file as constituted at the time, if Justice Immer had been asked the same question in light of CIBC’s new provisions, he would have applied the same reasoning as for BMO LA and refused to authorize the class action against CIBC. The court again notes that the application to strike does not extend to paragraphs 53 and 54, which introduce the new provisions. Justice Nollet concludes that if the intelligibility of the new provisions is to be debated, it will be in response to a defence by CIBC claiming that the new provisions resolved the difficulty raised at authorization; otherwise, it is unnecessary to debate their intelligibility. This is an additional reason to order the striking of paragraphs 56 and 57.

The court further notes that there is now evidence that the defendants’ practices have changed, but states that the authorization judgment cannot be rewritten every time defendants modify their practices and that it will be for the trial judge to determine the impact of the new provisions, if any.

Outcome, successful parties and monetary consequences

A separate judgment of 2 February 2026 had suspended the procedural delays in the case. Justice Nollet holds that the present judgment now allows the delays to resume as of the 45th day following the judgment.

In the dispositive portion, the court allows the motions to strike brought by Financière Banque Nationale inc., RBC Placements en direct inc. and Services investisseurs CIBC inc., orders the striking of paragraphs 44, 56, 57, 81 and 82 of the DII, and orders that the suspension of the procedural delays end on the 45th day following the judgment.

The judgment awards costs (“frais de justice”) in favour of Financière Banque Nationale inc., RBC Placements en direct inc. and Services investisseurs CIBC inc. No monetary amount for those costs is specified in the judgment, and no damages or restitution amounts are ordered at this stage. Accordingly, the successful parties in this decision are Financière Banque Nationale inc., RBC Placements en direct inc. and Services investisseurs CIBC inc.