Is a borrower’s decision to obtain a loan that requires payment of a broker fee a voluntary act?

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.