ROMANCHUK v AIMIA INC. Date:, 2014 BCPC 101

Citation: ROMANCHUK v AIMIA INC. Date: 20140529 2014 BCPC 0101 File No: 101591 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JOHN DAVID ROMANCHUK CLAIMANT AND: AIMIA INC., formerly known as GROUPE AEROPLAN INC. DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE McKIMM

Appearing on their own behalf: John David Romanchuk Counsel for the Defendant: C. Elrick Place of Hearing: Kelowna , B.C. Dates of Hearing: March 19 th 2014 Date of Judgment: May 29, 2014 [ 1 ] This is an application by the defendants for a stay of these proceedings pending the outcome of a class action launched in Quebec touching on the same legal issues. For the reasons that follow the application is granted. FACTS [ 2 ] The claimant is a member of a popular consumer loyalty program called Aeroplan . In this program in exchange for making certain purchases of goods or services the consumer accumulates points.

These points may be redeemed for other specified goods and services, such as airfares or other consumer goods. The claimant alleges that in November of 2011 the defendant unilaterally cancelled 154,000 points that he had accumulated. He asserts that this is a breach of his contract with the defendant and claims the sum of $11,550.00 in damages for that breach.

It is not entirely clear to the Court how the damages were determined by the claimant, but for the purposes of this application it is immaterial. [ 3 ] In response to this claim the defendant asks that the action be stayed pending resolution of a class action commenced in Quebec. Neale v. Groupe Aeroplan and Aeroplan Canada Inc. (Que.

S.C. 500-06-000476-099, Montreal Registry). (hereinafter called Neale) They concede in these proceedings that the named Defendant here is the legal successor to the named defendant in Quebec and the proper party to be named. [ 4 ] In the Neale action the plaintiff seeks damages for the value of the points lost as a result of the unilateral decision by the defendant to cancel her points. The defendant cancelled her points as a result of Ms. Neale not using the program for a period of twelve months. The cancellation was described to be as a result of a unilateral change to the contract between the defendant and Ms.

Neale. Ms. Neal argues in that case that the unilateral change was a breach of contract as well as arguing that she did not receive adequate notice of this proposed unilateral change. The claimant in the case at bar makes the same allegations. On March 6 th, 2012, Mandeville, J. of the Quebec Superior Court authorised a national class action to be commenced on Ms. Neale’s behalf. The class included all individuals in Canada from whom the defendant had cancelled points.

Position of the Parties [ 5 ] The claimant does not wish to be a part of the Quebec class action proceeding, preferring instead to litigate this matter in a registry convenient to him and at a pace under his control. He also expressed concerns as to the quantum of damages that he might receive and objects to the payment of legal fees for a matter, which he believes not to require the assistance of counsel.

He proceeded through this motion without representation and the Court was impressed with his ability to present his case and argue the complex issues involved in this application, there is little doubt that he is more than capable of pressing his demands before the Court without the assistance of high powered and expensive counsel that he has never met and who has made little serious effort to develop a professional relationship with him.

He further argues that the class action proceedings effectively destroy his ability to meaningfully participate in the proceedings given the cost of proceeding in Quebec relative to the damages at issue. Finally he argues that he did not receive any notice of the class action and, as a result, ought not to be bound to its proceeding [ 6 ] The defendant argues that the claimant of one of tens of thousands of persons so situated.

They say that a class action was certified nationally and the claimant failed to opt out of that proceeding and, as such, is bound by the Quebec Superior Court’s decision that all like cases be decided in the class action. They further argue that the claimant received notice of the class action and had an opportunity to opt out of the proceedings and failed to do so, as a result, he is by statute a member of the Quebec action.

Finally they argue that the entire class action process is designed to allow small litigants to gather together and obtain justice against large and far more financially powerful enterprises so that it is in everyone’s interest to allow the class action to proceed effectively. Discussion [ 7 ] While both parties presented compelling arguments regarding the utility and shortcomings of class action litigation and the social value of same, I am satisfied that this matter is far simpler than that and the Court does not need to delve into the debate regarding the utility of class actions.

This matter is properly resolved by consideration of the question of the notice provided and the claimant’s failure to opt out of the Quebec action. [ 8 ] Under the Quebec statutory regime an individual may commence a class action and seek to include within that class include all persons similarly situated in the country. Prospective members may opt out of that action by providing notice to the Court. Early in the proceedings the Court determines the process by which potential members are to receive notice of the class action. This was done by

Mandeville, J. in her order dated January 17th, 2013, in which she directed that an approved form of notice be given by publishing invarious national and regional papers, in the case of British Columbia the Vancouver Sun, by attaching a hyperlink to the April 2013edition of the Aeroplan Newsletter that goes to all Aeroplan members and by placing the notice on Counsel’s website.

The affidavitmaterial establishes that all of those steps were properly taken. [9] The claimant objects that he did not receive actual notice of this action for two reasons, first that the Vancouver Sun is notdelivered in the community of Vernon where he resides and second that the newsletter was never delivered to his current e-mail address. On both grounds he must fail. [10] Notice was specifically designed by the Court pursuant to the Rules of Court.

The notice is crafted in such a way that it is notnecessary to personally serve every one of the thousands of potential class members, but rather to ensure that the system of notice is notonly cost effective, but also makes it likely that the members will receive the notice. The Supreme Court of Canada in Canada Post Corpv. Lepine 2009 SCC 16 writes: The Ontario Court of Appeal stressed the importance of notice to members in a case involving an application for recognition of ajudgment rendered in Illinois, in the United States.

It emphasized the vital importance of clear notices and an adequate mode ofpublication (Currie v. McDonald's Restaurants of Canada Ltd. (2005), (ON CA), 74 O.R. (3d) 321, at paras. 38-40). Ina class action, it is important to be able to convey the necessary information to members. Although it does not have to be shown that eachmember was actually informed, the way the notice procedure is designed must make it likely that the information will reach the intendedrecipients. The wording of the notice must take account of the context in which it will be published and, in particular, the situation of therecipients.

In some situations, it may be necessary to word the notice more precisely or provide more complete information to enable themembers of the class to fully understand how the action affects their rights. These requirements constitute a fundamental principle ofprocedure in the class action context. In light of the requirement of comity between courts of the various provinces of Canada, they areno less compelling in a case concerning recognition of a judgment from within Canada.

Compliance with these requirements constitutesan expression of such comity and a condition for preserving it within the Canadian legal space. Canada Post Corp v. Lepine 2009 SCC 16 para. 43 [11] The form of notice in this case meets these requirements. It is also apparent that the notice was sent to the claimant byforwarding it as a hyperlink in the electronic newsletter sent to his last known e-mail address. The claimant says that he has not used thatparticular e-mail for many years, a fact which ought to have been known to the defendant.

However, I am satisfied that the e-mail wasindeed sent to the e-mail address which the claimant last had registered with the defendant as his address. If the claimant failed to notifythe defendant of his change of address that cannot be an answer to his failure to receive the notice. [12] The claimant has also not established that he will be prejudiced by this stay of proceedings. He will be entitled to all of theremedies available to all of the similarly situated litigants in the class action.

It is true that he will be effectively disenfranchised in theprosecution of this action, however this is a matter for the legislatures to resolve. At present they have crafted a process carefullydesigned to allow all parties to litigation to have a voice. To claimants with small and uneconomical claims against large and powerfulcorporations there is an avenue of redress, on the other hand to the large and powerful corporation with thousands of small, but identicalissues to resolve, the process allows for an economical and just process for resolution.

Once the threshold tests have been established andthe procedures are followed it is not for this Court to disassemble the process by piecemeal review of individual cases. [13] Furthermore, Small Claims Rule 1(2) requires that actions against corporations are to be commenced either; 1.) where theDefendant lives or carries on business or 2.) where the transactions that give rise to the claim took place. On the first ground the Claimclearly ought to be prosecuted in Quebec.

Curiously, in the terms and conditions of the contract between the claimant and the defendantthe claimant agrees that the laws of Ontario apply and that the Ontario Courts have exclusive jurisdiction to hear this dispute. In eithercase his appropriate forum is either Ontario or Quebec. On the second ground arguably the appropriate forum is again Quebec as the lastaction at issue is the action of the Quebec corporation to cancel points in the Quebec or Ontario plan.

In the result it is difficult to arguethat the Claimant is prejudiced in the prosecution of his claim in that he would most likely have been compelled on application toprosecute it in either Ontario or Quebec in any event. [14] One point does deserve specific mention, my view the provision of notice by means of the hyperlink was of almost no value andnot consistent with the spirit of the Order or the intent of law that notice ought to be given in a meaningful way.

The Hyperlink in theApril newsletter simply says, “Class action against Aeroplan certified.” This message is in small font on the third page of the Newsletterfollowing two pages of bold and engaging advertisements. There is no suggestion that the members ought to pay attention to the noticenor that indeed their failure to respond to the contents of the notice would require them to be part of a litigation over which they wereprobably going to have little or no control.

Indeed the style and position of the message appears to be designed to dissuade potentialmembers from viewing the hyperlink rather than notifying them of the important issues contained in the notice. In the newspaperadvertisement it is made abundantly clear that failure to reply will mean that the parties are bound to be parties to the litigation unlessthey specifically opt out of the litigation by a date certain.

The hyperlink could have easily made it clear that failure to review the termsof the notice would lead to their inclusion in the action. [15] Having made that finding, however, it is not appropriate to allow this action to proceed because of an apparent flaw in the noticeprocesses devised by the Court in Quebec. This question is one that is best left to that Court to review and determine whether the noticenot only complies with the letter but also the spirit of the Order. [16] The Defendant’s motion is granted and the claimants action is stayed pending decision in the action: Neale v.

Groupe Aeroplanand Aeroplan Canada Inc. (Que. S.C. 500-06-000476-099, Montreal Registry).

___________________________________ The Honourable Judge McKimm