In Jiang v. Peoples Trust Company, the Court of Appeal allowed an appeal from a class certification order and remitted the matter for further consideration by the chambers judge.
The defendants are all issuers of general use prepaid cards, branded as VISA, American Express or MasterCard. All defendants charged various fees in relation to the purchase and use of the prepaid cards. The cards were acquired by purchasers for a variety of reasons, including for reasons other than personal use. Ms. Jiang purchased a prepaid card for personal use, and alleged that the prepaid cards infringe the Business Practices and Consumer Protection Act ("BPCPA"). At certification, the chambers judge came to a final conclusion about whether the prepaid cards at issue were "prepaid purchase cards" within the meaning of the BPCPA, which, based on this analysis, led him to conclude there was a reasonable cause of action. On the issue of identifiable class, he concluded that it was impossible to define the class with reference to objective criteria. Despite that finding, the chambers judge went on to certify 5 common issues, while rejecting others.
On appeal, the plaintiff Ms. Jiang and the defendants each raised issues with the chamber judge's reasoning. Three issues drove the result in the appeal.
(1) The Court of Appeal held that the chambers judge properly determined that the plaintiff's claim was not bound to fail, but erred when he actually decided the merits of the issue of whether the prepaid cards were "prepaid purchase cards" within the meaning of the BPCPA. Final determinations of such issues, which would have resulted in the plaintiff being bound to "succeed" in that element of her cause of action, should have been left to the common issues trial.
(2) The Court of Appeal held that the chambers judge erred in finding the class definition to be deficient. In doing so, the Court rejected the "objective standards" analysis articulated by the Supreme Court of British Columbia in Ileman v. Rogers Communications. The Court noted that the appeals in Ileman did not require the appellate courts to comment on this issue. The Court commented: "it cannot be the case that a definition incorporating any subjective element denies the plaintiff resort to the [Class Proceedings Act] by virtue of failing the s. 4(1)(b) requirement. To hold otherwise would be to essentially rule that class actions under the BPCPA are impossible because the definition of "consumer transaction" will always incorporate a subjective inquiry: did this person purchase the good or service for a primarily personal, family or household purpose?" The Court held that it was an error to conflate the identifiable class requirement with the consideration of managing individual issues (which should appropriately be dealt with at the preferable procedure stage of the analysis (s. 4(1)(d)).
(3) The Court concluded that the chambers judge did not properly consider the s. 4(1)(d) analysis (given his error in conflating the identifiable class and preferable procedure requirements) and failed at all to address the requirements under s. 4(1)(e), relating to the proposed representative plaintiff.
The Court held it appropriate to remit the certification application back to the lower court to reconsider its s. 4(1)(d) analysis and perform a s. 4(1)(e) analysis.