2017 QCCA 1985, 2017 QCCA 1985

Aimia Canada inc. c. Taillon 2017 QCCA 1985 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL Nos: 500-09-027048-172 , 500-09-027049-170, 500-09-027050-178 (500-06-000725-149), (500-06-000744-157), (500-06-000724-142) DATE: December 14, 2017 PRESENT: THE HONOURABLE ALLAN R. HILTON, J.A. No: 500-09-027048-172 (500-06-000725-149) AIMIA CANADA INC. AIMIA INC. APPLICANTS – Defendants v. CHANTALE TAILLON RESPONDENT – Plaintiff No: 500-09-027049-170 (500-06-000744-157) AIMIA CANADA INC. AIMIA INC. APPLICANTS – Defendants v.

ROBERT LAMONTAGNE RESPONDENT – Plaintiff No: 500-09-027050-178 (500-06-000724-142) AIMIA CANADA INC. AIMIA INC. APPLICANTS – Defendants v. CHANTALE TAILLON RESPONDENT – Plaintiff JUDGMENT [ 1 ] The applicants are alleged to be the owners and operators of the loyalty awards program well known throughout Canada as Aeroplan.

Membership in this program allows participants to purchase various rewards, including airline tickets for flights on Air Canada, Air Canada Rouge, Air Canada Express and other affiliated airlines. [ 2 ] The respondents Chantale Taillon and Robert Lamontagne initiated motions to institute a class action that are dated prior to the coming into force of the new Code of Civil Procedure , although the judgments granting them authorization were rendered in July of 2017 by the Honourable Mr. Justice Kirkland Casgrain following a series of hearings that took place before him that year.

Their principal complaint is that when redeeming Aeroplan points to acquire airline tickets, they were forced to pay a series of charges such as airport improvement fees (plus taxes), fuel surcharges and what are described as Passenger Charges (plus taxes) that are not contemplated in the Aeroplan terms and conditions. [ 3 ] Accordingly, in each of the three proceedings, the respondents seek “Restitution and punitive damages against the Defendants”.

The applicants seek leave to appeal on the basis that an action in restitution does not lie against them, since they did not charge nor collect the impugned fees.

They invoke art. 1699 C.C.Q. to the effect that restitution “takes place where a person is bound by law to return to another person the property he has received/a lieu chaque fois qu’une personne est, en vertu de la loi, tenue de rendre à une autre des biens qu’elle a reçu sans droit.” [ 4 ] Without going into detail, the record contains clear documentary evidence in support of the proposition that the applicants did not collect the impugned fees from the respondents.

They therefore assert that the essential requirement of art. 575(2) C.C.P. for authorizing the recourse is lacking, namely that “the facts alleged appear to justify the conclusions sought/les faits allégués paraissent justifier les conditions recherchées”. [ 5 ] In addition, the applicants complain that the Superior Court judge did not provide them with an impartial hearing, and that the judgment granting the authorization was prepared for the judge by the respondents’ counsel at the close of hearing.

They also argue that the judgment is not adequately reasoned and is essentially in the form of boilerplate language that does not address their submissions that they invite this Court to consider. [ 6 ] In my opinion the grounds of appeal asserted are sufficiently serious to warrant leave being granted. [1] If an imperative requirement of the claim of restitution is lacking, it may be that authorization should have been refused. That will be for the Court on the merits of the appeal to decide.

FOR THESE REASONS, THE UNDERSIGNED : [ 7 ] GRANTS leave to appeal the judgments of the Superior Court authorizing the institution of a class action against the applicants; [ 8 ] PLACES the cases on the role of April 13, 2018 in room Mignault (RC-08) at 9:30am, for a 60 minutes hearing (30 minutes per party); [ 9 ] ORDERS the applicants, after having notified a copy upon the respondents, to file in the Office of the Court, no later than January 26, 2018 five copies of a written argument not exceeding 15 pages .

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached; [ 10 ] ORDERS the respondents, after having notified a copy upon the applicants, to file in the Office of the Court, no later than March 9, 2018 five copies of a written argument not exceeding 15 pages and of his supplementary documents; [ 11 ] DIRECTS the parties’ attention to

section 376 C.C.P. and

article 55 of the Civil Practice Regulation, which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 12 ] DIRECTS the parties’ attention to Practice Direction G-3 (last amendment: February 27, 2017) encouraging them to attach a technological version to each paper copy of their brief, memorandum and book of authorities. Such technological version should preferably be in Word format but may also be in PDF format enabling key-word searches. The USB drive is the format preferred by the Court, but CD / DVD-ROM are also accepted; [ 13 ] THE WHOLE with legal costs to follow. ALLAN R. HILTON, J.A.

Mtre Éric Préfontaine Mtre Alexandre Fallon Osler Hoskin & Harcourt For applicants Mtre Michel Savonitto Mtre Carl Consigny Savonitto & Ass. inc. For respondents Date of hearing: December 6, 2017