The past decade has seen an increase in the number of class
actions based on subsection 224(c) of the Consumer Protection
Act (Act) in Quebec. Whether it's in the airline,
automotive or retail sectors, merchants have been accused of
charging higher prices for goods or services than those advertised,
a practice which is prohibited by subsection 224(c) of the Act.
Although several of these class actions have been certified, no
decision on the merits had so far been rendered — that is,
not until very recently.
In a first, the Quebec Superior Court (QSC) rendered judgment on
the merits in the case of Union des consommateurs c. Air
Canada. It dismissed the class action on the basis that no
consumer had suffered an injury and that Air Canada could legally
charge the amounts in question to customers who purchased
tickets.
The case involved the sale of tickets by Air Canada on its website
between June 30, 2010, and February 8, 2012. The Union des
consommateurs (Union) alleged that Air Canada had breached
subsection 224(c) of the Act by applying taxes, fees and charges
that had been detailed prior to payment, but only at the second
step of the ticket reservation process. Following certification of
the class action by the Quebec Court of Appeal, Justice Karen
Rogers of the QSC presided over the hearing on the merits.
According to Justice Rogers, Air Canada would have breached
subsection 224(c) of the Act. However, she concluded that the class
action members had not suffered any injury and, therefore, could
not claim either a reduction of their obligations or compensatory
damages. The QSC also rejected the ultimate sanction claimed by the
Union, namely an award for punitive damages of up to C$10 million.
The impossibility to reoffend — Air Canada having ceased the
practice in question well before the class action's
certification — and the warnings on Air Canada's website
that the fares displayed did not include all charges convinced the
QSC that Air Canada had behaved without ignorance, carelessness or
negligence.
The absolute presumption of prejudice articulated by the Supreme
Court of Canada in Richard v. Time Inc. does not apply in
this case. For it to apply, the Union would have had to prove a
sufficient nexus between the prohibited practice and the contracts
binding consumers to Air Canada. In light of the evidence
submitted, the QSC concluded the opposite: the manner in which Air
Canada displayed its prices on its website did not influence
consumers' decision to purchase tickets.
The QSC concluded that if a practice prohibited under the Act is
committed, it does not automatically follow that consumers are
harmed. Consumers are still required to prove or, at least,
quantify the alleged injury pertaining to the "informational
defect" that was suffered by consumers as a result of the
violation of the Act. Remedies provided under the Act are not
intended to enrich consumers, especially where there is no evidence
of harm.
This decision, while having several implications for proceedings
based on subsection 224(c) of the Act, will also shed useful light
on many consumer law class actions, regardless of the alleged
prohibited practice, where such practice does not harm
consumers.
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