Can a plaintiff add a common issue addressing whether the mortgage provisions in issue are illegal or contrary to public policy?

British Columbia, Canada

The following excerpt is from Sherry v CIBC Mortgage Inc., 2018 BCSC 1484 (CanLII):

In support of her application to add a common issue addressing whether the mortgage provisions in issue are illegal or contrary to public policy, the plaintiff provided a thorough legal argument. The plaintiff submits that a provision in a contract may be found to be illegal and its enforcement may be found to be contrary to public policy where, for example, the provision is inconsistent with a statute enacted in the public interest to protect consumers. This result applies in particular where a statute requiring disclosure of information to consumers was not complied with: Royal Trust v. Potash, 1986 CanLII 34 (SCC), [1986] 2 S.C.R. 351 at 371-373.

Recent case law holds that a legislative regime might also be breached where the contract in question does not violate and is not contrary to a specific provision in a statute. A contractual provision that is inconsistent with a statutory scheme and its legislative purpose may for that reason be contrary to public policy: Niedermeyer v. Charlton, 2014 BCCA 165 at para. 90, 114, leave to appeal ref’d [2014] S.C.C.A. No. 285.

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