Canada: Take-Off Denied For Airline Fuel Surcharge Class Action

Last week, the British Columbia Supreme Court dismissed five class action certification applications in Unlu v. Air Canada (Unlu), which were brought against airlines regarding the manner in which fuel surcharges are displayed on a passenger's ticket receipt. The plaintiffs alleged that the airlines' display of fuel surcharges constituted a deceptive act or practice contrary to B.C.'s Business Practices and Consumer Protection Act (BPCPA) capable of misleading a consumer as to the true price of an airline's air transportation services. Justice Adair dismissed the certification applications on the basis that they failed to identify a sufficiently narrow, identifiable class or raise common issues, all of which are required to certify a class action. The chambers judge also found that the plaintiffs failed to adequately plead a basis for class-wide damages or other remedy. In doing so, she followed a series of recent B.C. decisions dismissing consumer protection certification applications, including Ileman v. Rogers Communications Inc. (Ileman) (see our June 2015 Blakes Bulletin: B.C. Court of Appeal Confirms No Cause of Action for Cellular "System Access Fees" Claim) and Clark v. Energy Brands Inc. (Clark) (see our October 2014 Blakes Bulletin: Another Refreshing Decision: Certification Denied in B.C. vitaminwater® Class Action) continuing the recent trend in B.C. and further limiting the scope for class-wide remedies pursuant to the BPCPA.


The plaintiffs asserted in Unlu that the airlines' pricing practices were deceptive contrary to the BPCPA on the basis that the airlines engaged in a practice of pricing that excluded and separated amounts charged pursuant to a ticketing code from the price of the air travel services. The plaintiffs asserted that by means of the code, the airlines classified the amounts payable pursuant to those codes as "taxes" payable to a third party, but in fact collected those amounts and retained them without paying them to any third parties. The plaintiffs sought damages and a restoration order under the BPCPA and other remedies on the basis that the airlines had been unjustly enriched. The airlines argued, among other things, that the process of purchasing and ticketing air travel is diverse and not uniform. The form and content of ticket receipts reflects practices at the travel agent level, over which the airlines have no control. Notably, none of the plaintiffs in these five cases had purchased air travel services directly from any of the airlines and none of the plaintiffs' ticket receipts that were alleged to contain deceptive statements were airline documents.


Justice Adair of the B.C. Supreme Court dismissed the applications under the BPCPA on the basis that the plaintiffs failed to meet the required elements of section 4(1) of the Class Proceedings Act (CPA). In particular, the court held that the plaintiffs had failed to meet their burden to show some basis in fact that there was an identifiable class and that the claims of the class members raised common issues.

With respect to the consumer protection claims, Justice Adair essentially followed the B.C. Supreme Court and Court of Appeal decisions in Ileman to find that the plaintiffs had not adequately pleaded a claim for damages pursuant to section 171 or a restoration remedy under section 172(3)(a). She also followed the lower court decision in Ileman to find that the plaintiffs had not adequately pleaded a claim for unjust enrichment; an alleged breach of the BPCPA cannot provide the basis for such a claim.

On the question of whether there was an identifiable class, Justice Adair agreed with the airlines that the plaintiffs' proposed class definition was impermissibly overbroad as it included individuals that had purchased air transportation for commercial or other non-"consumer" purposes and accordingly, had no claim under the BPCPA against any airline. A "deceptive act or practice" under the BPCPA can only arise where there is a "consumer transaction" which requires that the purchase was made by an individual "for purposes that are primarily personal, household or family". Indeed, each of the proposed representative plaintiffs had pleaded that he or she had purchased air travel for "personal use" and included similar statements in their affidavits in support of certification. Justice Adair found that as a result, the proposed class definition was unacceptably broad.

Although the conclusion that there was not a properly defined class was sufficient to dismiss the application for certification, Justice Adair observed that most of the plaintiffs' proposed common issues were individual and not suitable for certification. The few proposed common issues that could satisfy the requirements were not seriously in dispute and certification of such issues would do little to move the litigation forward. The plaintiffs' claims for injunctive and declaratory relief pursuant to section 172(1) of the BPCPA were the only claims sufficiently pleaded that could be pursued on a common basis (if there were an identifiable class). However, again, Justice Adair followed the previous decisions in Ileman (and Clark) that held that consumer protection claims seeking only a declaration or injunction do not warrant certification because those remedies can be pursued and would be binding upon the defendants regardless of whether or not the proceeding was a class action or individual claim; indeed, a class proceeding in such circumstances is unnecessary and wasteful.


The decision in Unlu continues the recent trend in B.C. dismissing certification of consumer protection class actions where the plaintiffs have not suffered any real damage or loss. Further, where a product or service can be purchased for different purposes, both "consumer" and commercial or other purposes, it will be difficult for plaintiffs to craft an appropriately narrow and objectively identifiable class of "consumers" to be able to pursue class-wide remedies without individual enquiries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
27 Oct 2016, Seminar, Toronto, Canada

Please join members of the Blakes Commercial Real Estate group as they discuss five key provisions of a commercial real estate purchase agreement that are often the subject of much negotiation but are sometimes misunderstood.

1 Nov 2016, Seminar, Toronto, Canada

What is the emotional culture of your organization?

Every organization and workplace has an emotional culture that can have an impact on everything from employee performance to customer or client satisfaction.

3 Nov 2016, Seminar, Toronto, Canada

Join leading lawyers from the Blakes Pensions, Benefits & Executive Compensation group as they discuss recent updates and legal developments in pension and employee benefits law as well as strategies to identify and minimize common risks.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.