On January 30, 2019, Justice Prévost of the Superior Court of Quebec dismissed an application for authorization to institute a class action in Benamor v. Air Canada, 2019 QCCS 208, on the basis that the Plaintiff’s claim could possibly not succeed in law.

The Plaintiff was seeking to institute a class action against Air Canada alleging that the Air Canada Flight Passes were “prepaid cards” under article 187.1 of the Quebec Consumer Protection Act, and that they illegally expired by the lapse of time.

Justice Prévost stated that the Court had a duty to rule on any questions of law if the success of the action is contingent on their determination. Here, because the success of the proposed class action depended on whether the Flight Passes can be considered “prepaid cards” under the Consumer Protection Act, Justice Prévost concluded he had to render a decision on this question.

Justice Prévost acknowledged that the scope of article 187.1 of the Consumer Protection Act had never been analyzed by a Court. He therefore reviewed the law and determined that “prepaid cards” had three key characteristics:

  1. A payment is made in advance;
  2. The payment is credited to a card, a certificate or another means of exchange; and,
  3. It must allow a consumer to purchase a good or a service.

Justice Prévost then reviewed the affidavits filed by Air Canada; these affidavits described the nature and operation of the Flight Passes.

Justice Prévost ruled that, because Flight Passes were taxed immediately upon their sale, unlike prepaid cards, and because the Flight Passes had no monetary value, they were not prepaid cards but rather an advance purchase of a package of services. In addition, Justice Prévost considered that the Flight Passes did not qualify as a “prepaid card” since they do not allow a consumer to acquire goods or services in the future, and the services were purchased at the time of the transaction.

Justice Prévost therefore dismissed the application for authorization to institute a class action on the ground that the case could not succeed in law.

The Plaintiff has appealed the decision.

Although the threshold for authorization remains very low in Quebec, this decision confirms that the Court still has the obligation to analyze questions of law when they are central to the potential success of the action—and that to do so, the Court can take into consideration the evidence filed by a party.