Mr. Justice Funt has refused to certify Vaugeois v. Budget
Rent-A-Car of BC Ltd., 2015 BCSC 802 on the basis of preferability.
This is a welcome result in the wake of AIC Limited v.
Fischer, 2013 SCC 69 discussed in an earlier blog
In this case, the plaintiffs alleged that the defendants, Budget
Rent-A-Car of B.C. Ltd. and Inland Transportation Ltd.,
"engaged in a systematic scheme whereby consumers renting
motor vehicles from Budget's various car rental branches [in
B.C.] were improperly charged or over-charged for body and window
The core of the plaintiffs' case was an alleged
"systematic scheme" by which the defendants caused
renters of vehicles to be improperly charged or over-charged for
repairs. The alleged scheme involved Budget's concealment of
damage to rental vehicles on the pre-rental inspection and then
improper charging of damage repair costs to the Class members
despite no damage having been caused by them, based on the results
of post-rental damage inspections and damage appraisals that had
not in fact occurred. The plaintiffs further alleged an internal
policy that paid employees a commission based on the number of
repairs found on each vehicle.
The court found that causes of action in (i) conspiracy to
injure, (ii) vicarious liability, (iii) waiver of tort, (iv) unjust
enrichment, and (v) for breaches of the Business Practices and
Consumer Protection Act ("BPCPA"), were properly pleaded;
that there was a class of two or more persons as required; and that
common issues were stated. However, the court found that the
individual questions of fact would overwhelm the common issues and
so a class action was not preferable in the circumstances.
The court reasoned that, assuming the systematic scheme was
proved, the defendants would be entitled to show that the
systematic scheme was not implemented with respect to any
particular renter. The defendants must have the ability, through
cross-examination of the particular plaintiff, to challenge the
plaintiff's allegations. In respect of each rental, the
defendants may wish to test the renter's credibility.
Furthermore, the defendants must, in each case, be entitled to show
that the damage to the vehicle did occur during her rental period.
Given that each individual's case will not depend on expert
evidence or a large number of documents, Provincial Court is well
suited to the resolution of these individual claims.
Mr. Justice Funt noted that, since the certification of a class
proceeding in this case would only delay the inevitable need for
separate liability hearings, "there would be only a mirage of
judicial economy" (para. 49). He also commented that if the
alleged systematic scheme, or breaches of the BPCPA, are proven in
a particular case in Provincial Court, it is likely that the case
would become well known . That and the administrative penalties
provided by the BPCPA could achieve behaviour modification as
effectively as a class action.
Vaugeois sets out, and follows, an approach to the
preferability analysis that defendants should find encouraging.
"Or you can trade it all for what's behind door number two..." Be honest – whenever you see this set up on a game show you secretly want the contestant to give up the sure thing and take a peek behind door number two.
The Law Society of Upper Canada, which governs the practice of law in Ontario, has rewritten one of its rules of professional conduct to create greater clarity for lawyers on how assertively they may represent clients...
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