1. The First Instance Decision (A. c. Air Canada, 2019 QCCS 606)

In 2019, the Québec Superior Court issued its judgment on the merits of the class action P.A. c. Air Canada, 2019 QCCS 606. At issue was an Air Canada policy that required passengers to purchase a ticket for extra seats needed as a result of their disabilities or obesity. The plaintiff alleged that the policy was discriminatory and contrary to the Canadian Human Rights Act. The trial judge granted the plaintiff’s claim in part, finding that Air Canada’s policy constituted a breach of a law of public order, violating an implied contractual obligation. This violation resulted in class members having to pay more for their flights, thereby entitling them to compensation.

Interestingly, the trial judge modified the class established by the Court at the authorization stage, reducing it from a pan-Canadian class to a Quebec-only class. Indeed, the original authorized class included all physical persons residing in Canada who had paid for an extra seat on an internal flight as a result of their disability or obesity and all persons who paid for a seat to assist those requiring accompaniment as a result of a disability.

The law applicable to individual claims was that of the jurisdiction in which the ticket was purchased. Given the pan-Canadian scope of the class, the Court was required to rule on the obligation to make reparation for loss under the law of every Canadian province where there had been a purchase of tickets. However, at trial, the plaintiff neither pleaded nor provided evidence as to the law applicable outside Québec. As a result, the trial judge ruled solely on claims governed by the law of Québec, and the class was narrowed.

Another point of interest is the fact that the Court opted for individual recovery. The judge found that pan-Canadian estimates for the initially authorized pan-Canadian class failed to provide a sufficiently specific basis upon which to allow for collective recovery solely in Québec. This difficulty was compounded by individual traits of class members which may have caused the need to travel accompanied. A case-by-case assessment to determine eligibility and the quantum of recovery was deemed necessary.

2. The Court of Appeal Decision (Air Canada c. P.A., 2021 QCCA 873)

The entirety of the trial judgment was upheld on appeal. Of notable interest was the plaintiff’s appeal of the trial judge’s decision to restrict the composition of the class to members who had purchased their tickets in Québec. It was argued that the composition of the class was res judicata since the question had been dealt with at the authorization stage. It was further suggested that Air Canada bore the burden to prove incompatibility of Québec law with that of other provinces because it was they who sought to have the group’s composition restricted.

In response, Gagnon J., writing for the Court, cautioned that while a generous approach is to be taken at the authorization stage, the Civil Code of Québec is unequivocal: the Court cannot presume or take judicial notice of applicable law outside Québec which is not, at a minimum, pleaded. Moreover, pursuant to art. 588 C.P.P., the court may modify or divide the class at any time, when circumstances so require.

3. Discussion

The Modification of the Class

The judgment offers a stark warning to litigants that the common questions and the composition of the class defined in the authorization decision are not cast in stone once at the merits stage. Indeed, while art. 588 C.C.P., which allows the court to revise common questions and the composition of the class, is usually used prior to a trial on the merits as a means to narrow the scope of the trial, this decision is a reminder that art. 588 C.C.P. can be used "at any time" and on the Court's "own initiative". As a result, defendants retain the possibility to point at any gap in the evidence adduced at trial by the plaintiff with a view to narrow the scope of the class and/or the common questions.

In this matter, the substantial gaps in the evidence adduced at trial by the plaintiff were with respect to the law applicable to class members residing outside the province of Québec. At the authorization stage, the fact that putative class members reside in different provinces is not in itself a bar to the authorization of the class action: the Court can indeed accept proof of the law applicable in the common law provinces or take judicial notice of that law (2809 C.C.Q)[1]. Only substantial differences between the applicable legal schemes would cause a class action to lose its collective nature and would justify the dismissal of the authorization.[2]

However, this liberal approach does not prevail at the merits stage, where plaintiff bears the burden (i) to demonstrate the law applicable to each claim, and, depending on that determination, (ii) to present proof of such law.

In this case, the Court of Appeal confirmed that the law applicable to class members residing outside Quebec is the law of their province of residence, in view of the nature and the circumstances of the airline ticket sales contract.[3] The Court of Appeal also confirmed that the presumption set out at article 3113 C.C.Q., which the plaintiff claimed would have allowed the Court to apply the law of the province of Québec to every class member because Air Canada has its head office in this province, was rebuttable and indeed rebutted.

This decision confirms that applicable law must be pleaded, even if it is as a subsidiary argument, and evidence adduced as to its content. Otherwise, litigants face the possibility of precluding the trial judge from ruling on claims governed by extra-territorial law, giving rise to circumstances requiring the narrowing of the class to a Québec-only class.

Individual Recovery

The Court of Appeal also upheld the decision to opt for individual, as opposed to collective, recovery. In the opinion of the Court, the trial judge gave good reasons for her decision because of the specificity of each member of the class with regard to their level of autonomy and the varying circumstances of the flight.

The Court of Appeal concluded that the chosen method of recovery must avoid disproportionate and blind increases in the financial burden on defendants (para. 213), which could be the case when damages vary greatly among class members and a collective recovery is ordered. This remark by the Court of Appeal could make this decision a “must-have” precedent for any defendant arguing against collective recovery.