Justice Belobaba's decision in the common issues trial of
Ramdath v George Brown College
currently under appeal, is one that should be monitored by
defendants and their counsel. The outcome of this common issues
trial, if upheld on appeal, may provide a "blueprint" for
other plaintiffs to advance misrepresentation claims in the context
of a class proceeding. Furthermore, this decision arguably broadens
the scope of the Consumer Protection Act
("CPA"),2 which may encourage
CPA claims in respect of a broader range of products and services
The plaintiffs were former students of the International
Business Management Program (the
"Program") offered by the defendant,
George Brown College ("GBC"). The
plaintiffs argued that GBC had made untrue representations in the
Program's course calendar that upon successful completion of
the Program, students would obtain three industry designations. In
fact, GBC was never authorized to provide these designations, and
upon successful completion of the program students would receive
only a GBC Graduate Certificate. GBC argued that the course
calendar accurately conveyed to students that the Program only
prepared students to pursue these industry designations in the
future, in the event the students chose to continue their
A claim for negligent misrepresentation is partially
This judgment is significant because it is an example of how
negligent misrepresentation claims will be handled at the common
issues trial of a class proceeding.
Until now, it was unclear if negligent misrepresentation claims
could be tried in a class proceeding. This is because the
established five-part test for negligent misrepresentation includes
a requirement that each plaintiff demonstrate individual reliance
on the alleged misrepresentation. In a class proceeding, the focus
of the common issues trial is on the resolution of issues of fact
or law that are common to all class members. By definition, a
common issues trial is unable to determine individual issues. The
individual reliance requirement has meant that most courts have
been unwilling to certify negligent misrepresentation as a common
However, the plaintiffs in Ramdath crafted the common
issues so that individual reliance was not one of the common issues
advanced at certification. By doing so, the plaintiffs essentially
split the elements of negligent misrepresentation between the
common issues trial and the individual issues trial.
In the subsequent common issues trial, Justice Belobaba found
GBC had negligently made untrue, inaccurate, or misleading
representations to a group of students with whom GBC had a special
relationship. The elements of the claim relating to individual
reliance and damages were left to be determined at the individual
issues phase of the litigation.
GBC breached the provisions of the CPA
In finding that GBC violated Part III of the CPA the Court found
that the student plaintiffs were "consumers" under the
CPA and that educational programs could be "consumer
products." In coming to this conclusion, the Court considered
whether or not the students, in taking these classes, were acting
for "business purposes." Justice Belobaba found that a
person is only acting for "business purposes" if that
person is carrying on an existing business.3 It
is not enough that the person is pursuing training or credentials
for a potential future business. In the educational
context, the Court drew a distinction between individuals enrolled
in courses to assist in finding future work, and professionals
enrolled in educational seminars relating to their existing
business.4 As the latter were seeking training for
existing business activities, they may not fall under the
definition of "consumer" for the purpose of receiving CPA
protection. However, students purchasing educational services in
the hopes of obtaining future employment are undoubtedly
"consumers" who can advance claims under the CPA.
Implications of the judgment
This judgment provides plaintiffs' counsel with a blueprint
for how to successfully advance a claim for negligent
misrepresentation in the context of class proceedings. This
development means that potential defendants may now be forced to
contend with negligent misrepresentation claims on a mass scale. If
so, damages trials will become more complex. This judgment also
shows the courts' willingness to consider a broader range of
services as falling under the CPA.
Defendants and their counsel will undoubtedly want to follow
this decision to determine whether this it signals a development in
the law in this area.
1. 2012 ONSC 6173.
2. SO 2002, c 30, Schedule A.
3. Supra note 1 at paras 55-60.
4. Ibid at para 59.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
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