On June 3, 2015, in Marshall v. United Furniture Warehouse Limited
Partnership (Marshall), the B.C. Court of Appeal
dismissed the plaintiffs' appeal from the application
judge's denial of certification of a proposed class action
arising from a cashable voucher promotion offered in United
Furniture Warehouse (UFW) stores. The Marshall case is a
recent example of the B.C. courts refusing to certify consumer
protection class actions where they do not satisfy the statutory
requirements for certification. In this case, the application judge
and the Court of Appeal found the plaintiffs' claims lacked
sufficient commonality to proceed as a class action and did not
meet the requirement that a class action be the preferable
CASHABLE VOUCHER PROGRAM
UFW offered a promotion in its stores across Canada in
2003–04 where customers who purchased eligible furniture
could receive a cashable voucher issued by a third party —
The Consumers Trust — for part or all of the value of the
furniture. A portion of the revenue from each transaction was paid
by the retailer to The Consumers Trust to participate in the
program. The cashable vouchers matured three years after the date
of issue. At that time, if the customer satisfied all of the terms
and conditions on the voucher and followed the specific
instructions for redemption, the customer was eligible to redeem
the voucher for an amount up to the amount of the voucher. The
advertising and brochures regarding the cashable vouchers were
explicit that the program operated on the premise that most
individuals would forget to submit their voucher(s) for redemption
or fail to satisfy the conditions on the voucher. It was, in other
words, a memory game.
UFW ended its participation in the cashable voucher program in
the fall of 2004. In December 2005, before any of the vouchers that
had been issued to UFW customers had matured and could be redeemed,
The Consumers Trust filed for bankruptcy. Pursuant to the terms and
conditions of the vouchers, UFW was expressly not responsible to
pay any amounts for the vouchers, but offered in-store credit to
customers with vouchers as a customer satisfaction measure.
B.C. SUPREME COURT DECISION
The plaintiffs sought to pursue a class action on behalf of all
persons who received cashable vouchers after making purchases from
UFW. The plaintiffs' central claim was that UFW committed a
deceptive act or practice under the Business Practices and
Consumer Protection Act by misrepresenting to customers
— through in-store signage, brochures, fliers and other
advertisements, the text on the vouchers themselves, and oral
representations by sales representatives — that UFW would
ensure that customers would receive money for the cashable vouchers
if they met all conditions and properly submitted them for
redemption at maturity.
Madam Justice Fisher of the B.C. Supreme Court refused to
certify the action. Among other things, she concluded that proposed
common issues required consideration of various individual
documents and individual oral representations from sales staff,
rather than a single, common representation. As a result, the
action would break down into individual issues requiring individual
assessments. For this reason, a class action would also not be the
COURT OF APPEAL DECISION
On appeal, the plaintiffs argued that the chambers judge erred
in finding that they relied on written and oral representations to
prove the alleged deceptive acts and practices and that there were
sufficient common written representations to allow a class action
to proceed. In brief reasons for judgment, the Court of Appeal held
that the chambers judge's conclusion that the oral
representations were "part of the mix for every customer"
was supported by the evidence. The Court of Appeal held that
Justice Fisher's conclusion was entitled to deference, and on
this basis alone, dismissed the appeal. The Court of Appeal also
found that Justice Fisher made no error in her findings regarding
the individualized nature of the case and upheld her decision that
certification as a class action was not the preferable
The Court of Appeal's decision in Marshall
demonstrates the deference to be afforded to a chambers judge's
assessment of the issues of commonality and preferable procedure.
The Court of Appeal's analysis substantially adopted the
reasoning of the chambers judge, with minimal further
The decision demonstrates that courts will refuse to certify
class actions where the plaintiffs seek to characterize the issues
as common, but on the evidence they involve individual issues, such
as individual representations and individual reliance.
Blakes represented the respondents 551148 B.C. Ltd., John
Volken and David Gerstner at both the Supreme Court of British
Columbia and the B.C. Court of Appeal.
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