r v. APPLE CANADA INC., 2012 QCCA 991

Bitton c. Apple Canada inc. 2012 QCCA 991 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC REGISTRY OF MONTREAL N° : 500-09-021734-116 (500-06-000415-071) DATE : JUNE 1, 2012 CORAM : THE HONOURABLE FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. YVES-MARIE MORISSETTE, J.A. DAVID BITTON APPELLANT – Petitioner v.

APPLE CANADA INC. and APPLE INC. (Apple Computer inc.) RESPONDENTS – Respondents JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court, Registry of Montreal (the Honourable Madam Justice Suzanne Courteau) rendered on the 3 rd of May 2011, and which dismissed his re-amended motion for authorization to exercise a class action and to obtain the status of representative ( the “motion”) . [ 2 ] Although the judge below held in substance that three of the four conditions set out in

article 1003 C.C.P. were met by the class action framed in the motion , she concluded that it failed to satisfy the second requirement of this article, contained in paragraph (b) : 1003. The court authorizes the bringing of the class action and ascribes the status of representative to the member it designates if of opinion that: […] (

b) the facts alleged seem to justify the conclusions sought; […]. She explains her reasons for reaching this conclusion in paragraphs [40] to [52] of her judgment.

Crucial among those is paragraph [44] which quotes a common admission of the parties, dated on the 4 th of March 2011; this admission states, with commendable terseness, that “[a] memory of 8GB expressed in decimal/metric terms is equivalent to a memory of 7.45GB expressed in binary terms”. [ 3 ] The appellant raises eight grounds of appeal, some of which pertain to other aspects of the holding below, but a central and decisive feature of his case in this court is the point made explicit by the common admission of the parties. [ 4 ] In essence, the class action which the appellant sought to exercise claimed that the respondents had misled purchasers of their iPod products by indicating on the packaging of this line of products that these devices each have a storage or memory capacity of 8 GB, when in fact their actual storage capacity is smaller, at approximately 7.45 GB [1] .

Respondents would thus have contravened several provisions of the the Civil Code and of the Consumer Protection Act [2] , notably in the case of this latter act

section 219 (making false or misleading representations to a consumer) and subsection 221 (b) (falsely holding out that goods have a particular dimension, weight, size or volume). [ 5 ] On this issue, the respondents’ position is aptly summarized in paragraph 29 of their factum. The appellant, they state, had no basis for the belief that the iPod products had a storage capacity of 8 GB expressed in binary terms .

Indeed, the packaging of all iPod products, including that of the iPod nanos introduced in the record by the appellant in support of the motion , states that the storage capacity is measured in base-ten units rather than binary or base-two units. Printed on the side of the box, in a legible and succinct paragraph containing various elements of information, is the following mention: “1GB = 1 billion bytes”.

The word “billion” necessarily refers to the decimal or base-ten system, that is, ten to the ninth power in the numbering system used every day. [ 6 ] The appellant argues that the Weights and Measures Act [3] to which the judge referred in paragraph [42] of her reasons does

not establish a measurement unit for data storage capacity in Canada. Whether or not the appellant is correct on this point is immaterial for the resolution of the case.

The issue that the judge had to decide was whether the facts alleged in the motion seemed to justify the conclusions sought – that is, whether it appeared from the motion that the information conveyed by the respondents about the storage capacity of their products was false or misleading. [ 7 ] There can be no doubt that the metric and decimal system of measurement has broad currency in Canada as elsewhere: that is apparent from the Weights and Measures Act which refers explicitly to “the International System of Units established by the General Conference of Weights and Measures”. [ 8 ] In his motion, the Appellant uses the phrase “Giga bytes expressed in binary sense” [4] and the judge underscores in paragraph [46] of her reasons that a degree of confusion results from the use of this phrase.

In light, however, of the common admission of the parties, the judge was entitled to conclude, as she does in paragraph [48] of her reasons, that « cette confusion a maintenant été entièrement résolue », that the information printed by the respondents on their packaging was accurate according to a commonly accepted method of measurement, and that therefore the appellant’s claim, as presented in the motion, was fundamentally flawed in that it lacked an essential legal element: the allegation that false or misleading information had been conveyed by the respondents in the marketing their iPod products. [ 9 ] FOR THESE REASONS , the Court: [ 10 ] DISMISSES the appeal, with costs.

FRANCE THIBAULT, J.A. LOUIS ROCHETTE, J.A. YVES-MARIE MORISSETTE, J.A. Mtre James Reza Nazem NBL Legal Inc. For the appellant Mtre Simon V. Potter Mtre Donald Bisson Mtre Shaun Finn McCarthy Tétrault For the respondents Date of hearing: May 29, 2012