In a judgment rendered on March 7, 2014, the Quebec Court of Appeal reversed a decision of the Quebec Superior Court and authorized a class action against Air Canada for allegedly charging a higher price than advertised for tickets, in violation of Article 224 (c) of the Consumer Protection Act, CQLR c P-40.1.

Claimant’s argument was that Air Canada’s online ticket purchasing system, which at the first step displayed the base airfare price only, and then at the next step, displayed the airfare plus applicable fees and fuel surcharges, equated to charging a higher price than that advertised.

As discussed in a previous post, Quebec courts will authorize a class action if they are satisfied that the criteria under Article 1003 of the Code of Civil Procedure, CQLR c C-25 are met. Of particular interest in the case in question is criterion d):

1003. The court authorizes the bringing of the class action and ascribes the status of representative to the member it designates if of opinion that:

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(d) the member to whom the court intends to ascribe the status of representative is in a position to represent the members adequately.

Notwithstanding the fact that the entire action was premised on Air Canada’s online purchasing system, the claimant had defined the group as anyone who had purchased a ticket from Air Canada, regardless of whether it was purchased on Air Canada’s website or not, between June 30, 2010 and February 8, 2012. In addition, evidence of Air Canada’s advertising practices other than on its website was only filed on the morning of the hearing of the motion for authorisation.

Justice Castonguay of the Superior Court held that the debate between the parties had always focused on Air Canada’s online purchasing system and that the late filing of evidence with respect to other advertising practices was unacceptable. In this respect, the Court of Appeal agreed, holding that the class action should be limited to persons having purchased a ticket directly on Air Canada’s website.

However, Justice Castonguay went further, holding that the strategic choice of the claimant in defining a proposed group that would also include persons who purchased tickets other than on Air Canada’s website, coupled with the late filing of evidence concerning non-website advertising, irremediably undermined the proposed representative’s capacity to represent the members of the class, such that criterion (d) of Article 1003 was not met.

With respect to this latter conclusion, the Court of Appeal disagreed, stating that a class representative is not necessarily an inadequate representative because he or she has been overly ambitious with respect to the proposed class definition.

Rather, the Court of Appeal reiterated that a representative cannot be considered inadequate if he or she meets the three conditions stated by the Supreme Court in Infineon Technologies AG v. Option consommateurs, 2013 SCC 59 at para. 149, namely that the representative has the requisite interest in the suit, is competent and there is absence of conflict with the group members.