At the end of January 2017 the Quebec Superior Court authorised a class action brought against Air Canada seeking reimbursement of amounts paid to it as a fuel surcharge when purchasing tickets for international carriage and other damages.(1)
Robert Choquette, the representative plaintiff, travelled from Montreal to Paris in September 2014 for a two-week stay. He purchased his return ticket online and paid, as part of the purchase price, an amount identified by Air Canada as a fuel surcharge. He alleges that the fuel surcharge amounted to more than 51% of the total ticket price charged.
By his own admission, Choquette paid little attention to the price of his ticket – or to the amount of the fuel surcharge – until he returned to Canada after his holiday in France. Once home, he decided to look into the actual cost of fuel. After conducting some research, he consulted a lawyer and legal proceedings were commenced.
The essential allegations put forward by Choquette are as follows:
- Air Canada violated Quebec's Consumer Protection Act in making false or misleading representations relating to the fuel surcharge that it charged to members of the class;
- Air Canada violated the Consumer Protection Act in charging fees so disproportionate as to amount to exploitation;
- The fuel surcharge formed an integral part of Air Canada's contracts of carriage for international flights;
- The fuel surcharge constituted a significant proportion of the total price of tickets sold; and
- Air Canada's false and misleading representations regarding the fuel surcharge related to an important or essential element of the contracts entered into by all members of the class.
Air Canada resisted the certification or authorisation motion on two main grounds.
First, it argued that the superior court did not have jurisdiction to hear Choquette's case because Parliament had granted exclusive jurisdiction to the Canadian Transportation Agency. Second, it submitted that Choquette had not met any of the requirements for certification.
In Canada, the superior courts of each province are courts of inherent and original general jurisdiction. By default, they may hear a legal dispute. In Quebec, this constitutional principle has been codified in the Code of Civil Procedure:
"33. The Superior Court is the court of original general jurisdiction. It has jurisdiction in first instance to hear and determine any application not formally and exclusively assigned by law to another court or to an adjudicative body.
It has exclusive jurisdiction to hear and determine class actions and applications for an injunction."
As Article 33 reflects, it is possible for the legislature to remove certain matters from the jurisdiction of a superior court, but only where that jurisdiction has been assigned formally and exclusively to another court or tribunal.
In this case, Air Canada argued that Parliament had formally and exclusively assigned jurisdiction to adjudicate matters in the nature of Choquette's claim to the Canadian Transportation Agency.
The second paragraph of Article 33 provides that the superior court has exclusive jurisdiction to hear and determine class actions. However, a class action is a procedural vehicle for hearing and determining disputes only, so this provision (and others relating to class proceedings) does not confer any sort of substantive jurisdiction on the court. If the court were satisfied that Choquette's claim came under the exclusive jurisdiction of the Canadian Transportation Agency, his proposed class action – or even an individual action – could not proceed in the superior court.
The superior court set out numerous provisions of the Canada Transportation Act and the Air Transportation Regulations articulating the agency's powers and responsibilities before holding that the question of the superior court's jurisdiction had already been determined by the Quebec Court of Appeal in WestJet v Chabot, 2016 QCCA 584. In that case, the court upheld the certification of a class action against WestJet seeking reimbursement and damages relating to its policy of charging passengers for an extra seat needed for reasons relating to disabilities (for further details please see "Quebec Superior Court assumes jurisdiction over accessibility class action").
In Chabot, it was held that while only the Canadian Transportation Agency has jurisdiction to regulate carriers (the courts have no such power), the Canada Transportation Act contains no formal or express provision granting the agency exclusive jurisdiction to hear disputes of the kind raised by the plaintiffs in that case. While the agency could adjudicate a dispute relating to 'one passenger, one fare' policies (and had done so in the past), it had not been granted exclusive jurisdiction to do so.
The court held that the same was true in the case of Choquette's fuel surcharge claim under the Consumer Protection Act.
Article 575 of the Code of Civil Procedure sets out the following four criteria that a representative plaintiff must meet to have a class action certified:
- The claims of the members of the class raise identical, similar or related issues of law or fact;
- The facts alleged appear to justify the conclusions sought;
- The composition of the class makes it difficult or impracticable to apply the rules for mandates to take part in judicial proceedings on behalf of others or for consolidation of proceedings; and
- The class member appointed as representative plaintiff is in a position to represent properly the class members.
Claims raise identical issues Air Canada argued that even if it were to accept that the first issue proposed by Choquette – whether the Consumer Protection Act applied to Air Canada – was common, the proceeding would result only in a multitude of mini-trials. According to Air Canada, each member's claim would have to be analysed on an individual basis: was the individual passenger even aware of the fuel surcharge? In addition, many factors would contribute to the analysis of a passenger's claim, including:
- the route flown;
- the combination of flights taken;
- the type of aircraft; and
- the variation of fuel price from one period to the next.
The court held that the questions raised by Air Canada were not the right ones. Following another decision of the Quebec Court of Appeal, it noted that an authorisation judge must not overemphasise variation between members; rather, the question is whether members are in "a sufficiently similar situation such that a common question for which the class action seeks answers can be identified". The central questions of whether the Consumer Protection Act applied to Air Canada and whether Air Canada contravened that act were sufficiently common across the class to meet this criterion.
Facts justify conclusions The court then analysed the evidence put forward by Choquette in support of the proposed action. According to the decision, Choquette had included data and tables which appeared to demonstrate that, in some cases, the amount charged to passengers for fuel exceeded the actual cost of fuel. In addition, there was evidence that fluctuations in the cost of fuel did not always bear any relationship with increases in the surcharge. There was also evidence that for a given type of aircraft used to fly to various destinations, the fuel surcharge made up a highly variable proportion of the actual fuel price – from 7% to 150% or more.
Air Canada objected to this evidence and to Choquette's calculations and analysis, while also citing the Canadian Transportation Agency's findings that the fuel surcharge fees were not unjust or unreasonable. However, the court held that these arguments went to the heart of the litigation, not to the question of certification, where Choquette had to show only that he had a prima facie case. A plaintiff must show only that he or she has an arguable case to make on behalf of the class, and in the court's view, Choquette had done enough to show that the fuel surcharge appeared abusive and contrary to the Consumer Protection Act for the purpose of authorisation.
Class composition Air Canada argued that the third criterion had not been met because Choquette had not provided the size of the proposed class. The court held that it is not the plaintiff's obligation at the certification stage to demonstrate the number of class members; instead, it is enough to show that several others are in a similar or identical situation. In this case, it was relatively obvious that a large number of people in Quebec had bought a ticket for international travel from Air Canada since February 2012.
Appointed plaintiff represents class Finally, the court did not accept Air Canada's arguments that Choquette was unable to represent the class. In part, Air Canada objected on the basis that Choquette:
- had had little involvement in preparing the calculations on which the action was based;
- had no knowledge of Air Canada's tariff or the regulatory scheme applicable thereto;
- had no familiarity with the Canadian Transportation Agency; and
- had not attempted to contact any other members of the proposed class.
The court followed other decisions that had held that the representative plaintiff's levels of interest in and knowledge of the particulars of the claim need not meet the levels advocated by Air Canada. The court was satisfied that Choquette understood that he had been subject to false or misleading representations and required to pay an unreasonable amount.
As a result, the class action will proceed to the next stage. The authorised class includes all individuals in Quebec who:
- purchased tickets for international travel (excluding travel to the United States) from Air Canada on or after February 8 2012, including for flights operated by other members of the Star Alliance; and
- were charged a fuel surcharge by Air Canada.
For further information on this topic please contact Carlos P Martins or Andrew W Macdonald at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800) or email (firstname.lastname@example.org or email@example.com). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.
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