On October 8, 2014, the B.C. Supreme Court refused to certify a
proposed consumer class action relating to the sale of bottled
beverages sold under the trade name "Vitaminwater" to
B.C. consumers. 1
The plaintiff alleged that the defendants, Energy Brands Inc.
and Coca-Cola Ltd., marketed Vitaminwater products in a manner
which had the "capability, tendency or effect of deceiving or
misleading a consumer" into concluding that Vitaminwater is a
healthy beverage with a minimal amount of sugar. The plaintiff
claimed that this constituted a "deceptive act or
practice" in violation of the B.C. Business Practices and
Consumer Protection Act ("BPCPA").
The Court refused to certify on the basis that the identifiable
class, common issues and preferability requirements of the
Class Proceedings Act were not made out.
This case, following on the heels of other certification
refusals this year including Ileman v. Rogers Communications
Inc.2, Wakelam v. Wyeth Consumer
Healthcare/Wyeth Soins de Sante Inc.3 and Ladas
v. Apple Inc.4, continues a recent line of
authority in which B.C. judges appear willing to apply the
certification criteria more robustly than has historically been the
The case is also encouraging for defendants in consumer class
actions for three reasons:
Narrowing of available relief under the
BPCPA: Following Ileman and
Wakelam, the plaintiff abandoned its claim under s. 172 of
the BPCPA for restoration of money received by the
defendants given that a "proprietary nexus" was required.
The plaintiff restricted his claim of monetary relief to his
"premium price" theory of loss, i.e. that the members of
the class paid more for Vitaminwater than they otherwise would have
Evidentiary basis is required for BPCPA
damages claim: The Court held that there was no evidentiary basis to
support the plaintiff's premium price theory of loss, in
particular there was no evidence of the price paid for the product
or how the price compared with the price of other products, sugary
or otherwise. The Court concluded that the plaintiff's
assertion that evidence "might" be obtained on discovery
of the defendants to support the theory was untenable and refused
to certify the action for damages under the s. 171 of the
The effect of the deceptive act or practice
matters: The Court held that the issue as framed by the
plaintiff did not distinguish between representations that had the
"capability" or "tendency" of misleading a
consumer and those that actually had that effect. For potential
remedy, it is the "effect" that matters. The Court held
that the motivations behind the multitude of consumer transactions
at issue were almost "endlessly variable" so reliance
could not reasonably be inferred.
Although popular, proposed class actions under the
BPCPA may be becoming more difficult to certify.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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