In Marshall v. United Furniture Warehouse Limited Partnership, a
unanimous division of the British Columbia Court of Appeal upheld
the lower court's refusal to certify a claim where consumers
received varied combinations of written and oral representations.
This decision is critical for any business whose front-line staff
engage directly with consumers.
The Plaintiffs' Claim
The plaintiffs attempted to certify a class action against the
respondents, the United Furniture and Brick group of companies (and
certain predecessor organizations), on the basis that they misled
consumers into believing that a "cash voucher" program,
administered by a third party, was guaranteed by them. The
plaintiffs alleged that this was a deceptive act or practice under
the British Columbia Business Practices and Consumer Protection Act
The plaintiffs alleged that the guarantee was created by a
combination of certain parts of the text on the vouchers, newspaper
advertisements, in-store signs and tags, and oral representations
by sales people. The evidence before the court was that every
customer had to deal with a sales person in making his or her
purchase and that each sales person gave differing amounts of
detail about the program to consumers. Counsel for the plaintiffs
acknowledged that different plaintiffs would have been exposed to
different sources of information.
Certification Judge's Refusal to Certify
The certification judge, in refusing to certify the claim, held
that the claim failed to establish necessary commonality of
experience for the consumer to justify a class action. She
...while there is some commonality in the written sources, the
evidence demonstrates that different customers received a varying
amount of information from sales staff, both written and oral. The
fact that the plaintiffs rely on varying combinations of written
material and oral representations to prove a deceptive act or
practice renders a determination of this issue one for individual
The Court of Appeal Reasons for Judgment
The Court of Appeal held that the certification judge's
finding that oral representations were in the "mix for every
customer" was supported by the evidence, and was owed
deference. The Court upheld the refusal to certify.
The Court of Appeal concluded:
Each customer had a different experience in the store(s). Under
the BPCPA, each class member would have to demonstrate
that he or she fell within the Act. The appeal can be disposed on
this basis. There is no error in the chambers judge's findings
on this aspect of the case, and that alone is enough to uphold her
decision that certification is not the preferable procedure.
The full decision of the Court of Appeal is available online,
and is indexed as 2015 BCCA 252.
Impact of Decision
This decision affirms that the certification analysis still must
be robustly applied to protect the courts from unwieldy class
actions that are devoid of commonality.
The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).