Canada: Ontario Court Of Appeal Inspiring Consumer Misrepresentation Class Actions

Last Updated: February 4 2016
Article by Laurie Baptiste

Most Read Contributor in Canada, September 2018

The Ontario Court of Appeal is once again making headlines with the case of Ramdath v George Brown College, which has turned out to be a doubly significant case at the intersection of class actions and consumer protection legislation.

The case first captured attention in 2013 when the Ontario Court of Appeal confirmed that students are "consumers" and education a "consumer product", and that consumers do not need to prove reliance on a false, misleading or deceptive representation to establish an unfair practice and a right to a remedy. Now in its most recent decision, the Court went further still—confirming the Consumer Protection Act1 does not require any reliance on or even knowledge of the unfair practice and also that corrections of an unfair practice will be too late and of no effect if done after a consumer makes an agreement to purchase.

In addition, this was the first award of aggregate damages at trial under s. 24 of the Class Proceedings Act2 in an Ontario class action, including to a class with a consumer protection claim, and the Court of Appeal upheld that award. The Court helpfully clarified that, in a claim for unfair business practice, individual proof of reliance is not required to quantify and award damages and the amount of damages is not required to be determined on an individual basis.

The overall result is an expansion of the application of consumer protection legislation and a lowering of the bar for recovery for unfair business practices and misrepresentation class actions. This decision has some potential to inspire other consumer protection class actions. The Court itself expressly found that the lack of need to prove reliance or inducement in claims under the Consumer Protection Act facilitates the use of that act as a basis for class actions.

As a result of Ramdath, all those who make or provide consumer products or services, including educational providers and institutions, should be aware of this decision and ought to be thoughtful and careful in all of their communications and in the information they distribute about their products or services.

Background and Decision Below

Feldman JA, for the Court, summarized succinctly the relevant background and decision below (at paras 2-3). As he explained, the plaintiffs/appellants were students (mostly foreign students) who enrolled in a post-graduate program in International Business Management at George Brown College ("GBC") in 2007 and 2008. They claimed that GBC's course calendar contained a misleading statement that program graduates would have "the opportunity to complete three industry designations/certifications" in addition to the GBC graduate certificate. However, students had to complete additional courses or work experience as well as exams at their own expense, in order to fulfill the requirements for the industry designations. They first complained to GBC and then commenced a class action against GBC for negligent misrepresentation, breach of contract and unfair practice under the Consumer Protection Act.

Feldman JA also explained how the class action has proceed in stages:

  1. The first stage was certification of the class action;3
  2. Next, there was a common issues trial where the court found the statement in the course calendar was a negligent misrepresentation and an unfair practice.4 That decision was upheld on appeal.5
  3. Then there was the damages trial, at which the court awarded aggregate damages for the statutory cause of action but removed one group of students from the certified class (the latest group to start the program, in September 2008, whom had been orally advised at the beginning of the term about a correction to the course calendar within the 10-day course withdrawal period).6

The students appealed the change to the class composition (i.e., the removal of the one group of students) and GBC cross-appealed on the aggregate damages award.

There Should Have Been No Exclusions From The Certified Class

In regards to the appeal by the students, the Court of Appeal found that the trial judge made a number of errors of law and a palpable overriding error of fact which undermined his analysis when he excluded the third group of students from the certified class.

First, the Court reiterated that because the plaintiffs elected to pursue only their Consumer Protection Act claim at the damages trial (and not their claim for negligent misrepresentation), reliance on the misrepresentation was no longer in issue. Therefore, the trial judge erred in considering evidence as to reliance by the third group of students. The facts showed that all of the students who commenced the program in September 2008 had entered into an agreement with GBC (i.e., they had enrolled) and made some payment toward tuition while course calendar still contained the misrepresentation. Given that, all of these students were subject to the unfair practice and entitled to a remedy.

Second, the Court found the trial judge erred by excluding the third group of students because an oral correction had been provided within the 10-day course withdrawal period and they had an opportunity to withdraw. To the extent the trial judge's conclusion was made on the basis of reliance or knowledge, that was an error of law. The Court clarified that claims under the Consumer Protection Act based on an agreement entered into following an unfair practice do not require any reliance or even knowledge of the unfair practice. In the alternative, if the trial judge found the oral correction had essentially nullified the unfair practice for the third group, the Court found the oral correction came too late. The students had entered into their agreements with GBC after the unfair practice and before the correction, so their claim had already crystallized.

Finally, the Court found the trial judge erred in finding the third group of students had the opportunity to withdraw and obtain a full refund and so were not victims of an unfair practice.

Aggregate Damages Desirable – Reliance and Individual Assessment Not Needed

The damages phase of proceedings went forward based only on the students' claim for aggregate damages due to the unfair practice, which did not require proof of reliance by any of the class members. Nonetheless, GBC's position was that such damages depended on showing individual causation and could only be assessed on an individual basis. The trial judge disagreed and assessed damages on an aggregate basis.

The Court of Appeal endorsed the trial judge's view that it was desirable to award aggregate damages where the criteria of s. 24(1) of the Class Proceedings Act were met. The Court also agreed with the overall approach of the trial judge and his focus on the "reasonableness" standard to determine aggregate liability, as well as with the three criteria he set out to ensure fairness to both sides (at para 76):

  1. whether the non-individualized evidence presented by the plaintiff is sufficiently reliable;
  2. whether use of the evidence will result in unfairness or injustice to the defendant, such as overstatement of its liability; and
  3. whether the denial of an aggregate approach will result in a "wrong eluding an effective remedy" and a denial of access to justice.

The Court noted that the specific question before the trial judge was "whether aggregate damages could be awarded in this case as the remedy for an unfair practice under s. 18(2) of the Consumer Protection Act. It therefore involved the interaction between the Consumer Protection Act and the Class Proceedings Act" (at para 79).

In this regard, there were two key related issues raised by GBC: (1) Even when reliance was not an element of establishing an unfair practice, was an award of damages dependent on showing an individual causal connection? (2) Did the court have to determine the amount of damages on an individual basis?

The trial judge had avoided answering either question directly finding, in the end (in error), a sufficient causal connection had already been established. The Court of Appeal dealt with the questions head-on. First, the Court confirmed that because there is no requirement for reliance or inducement, claims for liability under the Consumer Protection Act are proper for certification (as in this case), which facilitates the use of that act as a basis for class actions. Further, while to be awarded damages under s. 18(2) of the Consumer Protection Act a consumer still needed to establish causation, the necessary causal link in this case flowed from entering the agreement after or while an unfair business practice was occurring. A causal link was not required between the actual unfair practice and the damages (as suggested by GBC) as that would wrongly reintroduce the need for reliance or inducement into the remedy.

Overall, the Court clarified that individual proof of reliance is not required to quantify and award damages—in a statutory claim for an unfair business practice under the Consumer Protection Act, reliance is not a component of the claim.

Further, damages are not required to be determined on an individual basis. The Court upheld the trial judge's approach in relying on evidence from particular individual plaintiffs and extrapolating from that evidence for the whole group. The Court found the trial judge was properly looking for reliable evidence to "reasonably" determine components of aggregate damages as required. The Court also found no error with the trial judge's reliance on expert evidence for certain components of damages.

Case Information

Ramdath v. George Brown College of Applied Arts and Technology, 2015 ONCA 921

Date Released: December 24, 2015

Docket: C59349


[1] RSO 1990, c C.31.

[2] 1992, SO 1992, c 6.

[3] 2010 ONSC 2019.

[4] 2012 ONSC 6173.

[5] 2013 ONCA 468.

[6] 2014 ONSC 3066 and 2014 ONSC 4215.

To view original article, please click here.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions