Defendants Continue to have Success with the Pleadings and Identifiable Class Requirements

The trend showing a more rigorous application of the certification criteria in B.C., particularly in respect of the pleadings and identifiable class requirement, has continued with the B.C.S.C.’s reasons for judgment in Unlu v. Air Canada, 2015 BCSC 1453.

In this set of cases, individual representative plaintiffs had purchased tickets for international air travel from each of five different defendant airlines. The tickets included amounts described as airfare as well as variously described taxes and fees, which included amounts for fuel surcharges. The five actions alleged that the manner in which fuel surcharges are displayed and described on passengers’ ticket receipts amounts to a deceptive act or practice contrary to the Business Practices and Consumer Protection Act (the “BPA”).

In detailed reasons, Adair J. reviewed the plaintiffs’ pleadings and applied the B.C.C.A.’s recent reasons in the Ileman Appeal (2015 BCCA 260). Adair J. concluded that the plaintiffs did plead a reasonable claim for a declaration or an injunction in relation to the alleged deceptive conduct, but failed to plead sufficient material facts to make out a reasonable claim for a restoration order, unjust enrichment or punitive damages.

Adair J. further held that both of the two proposed, alternative, class definitions were unnecessarily broad and included persons who will not have any claim under the BPA. This conclusion stemmed from the failure of the proposed class definitions to account for the consumer’s purpose – whether personal or business – in entering into the impugned “consumer transaction”, as required by the BPA. The plaintiff therefore failed to show there was some basis in fact that there is an identifiable class.

Defendants in B.C. continue to have success through focusing their certification opposition on the pleadings and class definition requirements of certification.



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