The Quebec Superior Court currently declined to certify a category action primarily based on the software of positive sections of the Consumer Protection Act or its Alberta equivalent to the sale of flight passes bought with the aid of Air Canada.
The consultant plaintiff, Joseph Benamor, claimed that he had purchased a flight skip from Air Canada for C$2,562 in March 2015, equal to eight flights to and from Florida. It changed into valid for 365 days.
This flight pass could be used by Benamor or a guest, whose identity can be modified for a supplemental charge, which Benamor claimed that he had paid.
In February 2016, Benamor alleged that Air Canada had required that he pay an additional C$250 to increase the pass for three months.
Benamor claimed that the expiry date, the extra charges to feature a visitor, and the price to increase the pass had violated Quebec’s consumer safety laws or their Albertan equivalent.
Benamor relied particularly on Sections 187.1 via 187.Five of Quebec’s Consumer Protection Act, which pertains to prepaid cards and gift playing cards.
Benamor sought to certify a category movement for:
all purchasers worldwide (subsidiarily in Canada or in the province of Québec) who, from August 16, 2013, purchased, received, and acquired one or greater Air Canada Consumer Flight Pass(es) with a certain quantity of flight credits.
Quebec’s elegance court cases rules call for a courtroom to certify an intention as a class proceeding if the following standards are met:
The magnificence of members’ claims must boost equal, comparable, or associated issues of law or fact.
The facts alleged need to appear to justify the conclusions sought.
The class composition makes it difficult or impracticable to apply the regulations concerning different representative actions or consolidation of lawsuits.
The elegance member appointed as the representative plaintiff ought to be able to constitute the class participants properly.
In this case, Air Canada challenged certification because the statistics alleged did no longer justify the conclusions sought (i.e., there was no reasonable motive of action). Air Canada also challenged Benamor’s potential to represent the magnificence of individuals correctly.
The plaintiff (Benamor) took the position that the flight passes had been prepaid playing cards within the meaning of Sections 187.1 through 187.5 of Quebec’s Consumer Protection Act. He argued that the flight passes met the definition of a ‘prepaid card’ in the legislation due to the fact:
there has been a fee earlier;
it involved a card or different instrument of change; and
it approved the patron you acquire service from Air Canada.
Quebec’s customer safety rules prohibit:
prepaid playing cards from expiring; and
extra expenses for using prepaid cards.
Therefore, Benamor argued that Air Canada needs to be required to compensate for the damages sustained due to failing to abide via its duties below the legislation.
The defendant (Air Canada) took the location that the flight passes had been extra akin to public transit passes.
Air Canada’s proof became that the flight passes carried no financial fee, however as an alternative that they have been made out of a hard and fast number of flight credits for one-way journeys that could differ in price over time. Applicable taxes and costs have been included in the overall value of the flight pass.
Air Canada argued that Air Canada also assumes the chance of fluctuations in price ticket expenses and any governmental or airport charges related to operating the flights after a customer purchases a flight pass.
Air Canada also cited that it offered present playing cards with a fixed monetary fee. For current maps, the taxes and charges had been no longer blanketed within the command. These playing cards did no longer expire.
Air Canada also argued that Benamor had no personal movement because he had bought the flight skip using an enterprise credit card, struggling with no non-public damages. Therefore, he could not nicely represent the class members.
The Quebec Superior Court declined to certify the proposed magnificence action, protecting that the pay as you go card provisions in the customer safety legislation did no longer practice to Air Canada’s flight passes.
The courtroom additionally considered whether Benamor might qualify as a good enough representative plaintiff. It held that the qualified at this degree of the motion.
In handling the first problem, the courtroom considered the character and characteristic of the flight passes.
It held that pay as you go playing cards is usually a choice to cash, whereas flight passes do not constitute a fixed amount of money.
In unique, the court cited the reality that taxes and fees are covered inside the flight passes’ expense, while taxes are usually charged at the time of use for pay as you go cards.
The court held that the flight passes might be understood as an immediate purchase of a service to be rendered within a specific territory and period.
The court docket held that the same reasoning was implemented to the Alberta consumer protection law.
Although it becomes useless to determine the second one difficulty, the court held that Benamor couldn’t be disqualified as an adequate consultant plaintiff at this stage for two reasons:
Although he had charged the flight bypass in question to his employer credit score card, there was insufficient evidence to decide whether or not the damages alleged had been suffered entirely by way of the enterprise, as opposed to Benamor, in my view.
Benamor met the low threshold of having an interest in the claim, being ready, and having no warfare with the alternative magnificence contributors.