On February 21, the Quebec Court of Appeal refused to authorize a class action against several oil companies distributing gasoline in Quebec (Lorrain c Petro-Canada, 2013 QCCA 332).

The action was based on the allegation that certain gas pumps were incorrectly calibrated, to the benefit of oil companies.

Between 1999 and 2007, Measurement Canada, a federal agency responsible for applying the Weights and Measures Act, inspected more than 200,000 gasoline pumps in Canada. According to the results of that inspection, approximately 8% of the gas pumps were not correctly calibrated—i.e. 6% to the detriment of the consumer and 2% to the detriment of the merchant.

Based on these findings, a motion was filed for authorization to institute a class action claiming damages equal to the amounts overpaid by consumers as well as punitive damages.

The Court of Appeal refused to authorize the class action.

The Court insisted that the rule of proportionality codified in Article 4.2 of the Code of Civil Procedure (CCP) applies in class action cases and that a judge seized of a motion for authorization must consider this rule in analyzing the four criteria set out in Article 1003 CCP.

The Court then analyzed the four criteria in Article 1003 CCP and refused to authorize the proposed class action on the grounds that the applicants had failed to demonstrate the existence of direct injury. In fact, according to the invoices submitted by the applicants in support of their motion, the applicants had never purchased gasoline from a retailer where, according to the Measurement Canada inspection report, a pump was incorrectly calibrated.

The applicants had also admitted that they could not remember the other gas stations they had purchased gasoline from and even less so the gasoline pumps they had used when they made those purchases. Briefly, the applicants did not have any direct evidence of injury against the five oil companies targeted by the proposed class action.

The Court of Appeal therefore confirmed, in explicit terms, that a class action essentially based on purely statistical data cannot be authorized.

The Court of Appeal also stated that the injury suffered by consumers could vary infinitely as some consumers would have purchased gasoline only once at an allegedly inaccurate gas pump, while others would have done so at that same pump hundreds or even thousands of times. According to the Court of Appeal, a class action should not be authorized in such circumstances.

The Court of Appeal decision reconfirms the importance for an applicant to demonstrate the existence of direct and personal injury. The absence of such evidence cannot be remedied by statistical evidence.