2014 QCCA 523, 2014 QCCA 523

Unofficial English Translation Union des consommateurs c. Air Canada 2014 QCCA 523 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-023004-120 (500-06-000513-107) DATE: March 7, 2014 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. CLÉMENT GASCON, J.A. DOMINIQUE BÉLANGER, J.A. UNION DES CONSOMMATEURS APPELLANT – Petitioner and MICHAEL SILAS DESIGNATED PERSON v.

AIR CANADA RESPONDENT - Respondent and PRESIDENT OF THE OFFICE DE LA PROTECTION DU CONSOMMATEUR INTERVENER JUDGMENT [ 1 ] The appellant appeals from a judgment rendered on August 24, 2012, by the Superior Court, District of Montreal (the Honourable Mr.

Justice Martin Castonguay) and corrected on September 4, 2012, which dismissed its motion for authorization to bring a class action against Air Canada. [ 2 ] For the reasons of Bélanger, J.A., with which Morissette and Gascon, JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal, with costs; [ 4 ] SETS ASIDE the trial judgment; [ 5 ] AUTHORIZES the bringing of the class action, with costs to follow; [ 6 ] ASCRIBES the status of representative to Union des consommateurs for the purpose of bringing the said class action on behalf of the following group of natural persons: [ translation ] Consumers within the meaning of the Consumer Protection Act , residing in the province of Quebec at the time of purchase, who bought an airplane ticket from Air Canada, between June 30, 2010, and February 8, 2012, on its website and who paid a higher price than that advertised by Air Canada on its website (at the first step of purchase), excluding GST, QST, and duties chargeable under any federal or provincial Act where, under that Act, the duties must be charged directly to the consumer to be remitted to a public authority, as well as optional charges, regardless of whether the flight was carried out by Air Canada, Jazz, Rapidair, an airline carrier member of Star Alliance, or by another airline that does or does not share codes, such as: ▪ Continental Airlines ▪ United ▪ U.S.

Airways ▪ Lufthansa

▪ Austrian ▪ Brussels Airlines ▪ Egyptair ▪ Scandinavian Airlines ▪ Swiss ▪ Lot Polish Airlines ▪ Singapore Airlines ▪ Thai ▪ The other carrier members of Star Alliance ▪ British Midland International ▪ British Airways [ 7 ] IDENTIFIES the main issues as follows: 1. Is Air Canada subject to the Québec Consumer Protection Act ( C.P.A .) (R.S.Q., c. P-40.1)? 2. Is Air Canada violating paragraph 224 (

c) of the C.P.A. ? 3. If so, are the members of the group entitled to claim the following amounts from Air Canada?

a) The reimbursement of the amounts that the members disbursed to obtain their airline ticket that were not included in the advertised price (excluding the GST, QST and the duties chargeable under any federal or provincial Act where, under that Act, such duties must be charged directly to the consumer to be remitted to a public authority, as well as optional charges ... )?

b) The amount of $100, in punitive damages.

c) The interest and additional indemnity set out in the Civil Code of Québec on the above amounts, from the date of service of the motion for authorization. [ 8 ] IDENTIFIES the conclusions sought as follows: ALLOW the class action of the Union des consommateurs and the members of the group against Air Canada; CONDEMN Air Canada to pay Michael Silas and each of the members of the group the amounts that they disbursed to obtain their airline tickets that were not included in the advertised price [excluding Quebec sales tax (“QST”), the Canada Goods and Services Tax (“GST”), the duties that Air Canada must charge directly to consumers under any federal or provincial Act to be remitted to a public authority, and the price of the options]; ORDER that the above condemnation be subject to collective recovery; CONDEMN Air Canada to pay Michel Silas and each of the members of the group the amount of $100.00, subject to amplification, in punitive damages and ORDER that this condemnation be subject to collective recovery; CONDEMN Air Canada to pay to Michel Silas the sum of $192.88, broken down as follows: • Reimbursement of “Taxes, charges, and extras”: 92.88 $ • Punitive damages: 100.00 $ TOTAL: 192.88 $ CONDEMN AIR CANADA to pay the interest and additional indemnity set out under the Civil Code of Québec on the total amounts above and ORDER that this condemnation be subject to collective recovery; MAKE any other order that this Court may deem necessary and that would be in the interest of the members of the group; THE WHOLE with costs, including the cost of the notice, claims management fees, and expert fees, if any, including those required to establish the amount of the orders for collective recovery. [ 9 ] REFERS the file to the Chief Justice of the Superior Court to determine the district in which the class action should be brought and to designate the judge who will manage the case; [ 10 ] REFERS the appellant’s other claims, the issue of publishing the notice to members, and the time limit for exclusion to the judge who will manage the case.

YVES-MARIE MORISSETTE, J.A. CLÉMENT GASCON, J.A. DOMINIQUE BÉLANGER, J.A.

Mtre François Lebeau Mtre Mathieu Charest-Beaudry Unterberg, Labelle, Lebeau For the appellant Mtre Robert Torralbo Mtre Marc-André Landry Blake, Cassels & Graydon For the respondent Mtre Geneviève Duchesne Mtre Michèle Milhomme-Drouin Allard, Renaud and Associates For the intervener Date of hearing: December 12, 2013 REASONS OF BÉLANGER, J.A. [ 11 ] Since the legislative amendments enacted on June 30, 2010, a merchant can no longer advertise fragmented prices, whether in an advertisement in a print or electronic media outlet or on an informational website, and then add charges that were until then unknown, without violating paragraph 224(

c) of the Consumer Protection Act ( C.P.A .). [1] [ 12 ] The issue that arises when considering paragraph 1003(

b) C.C.P. is whether the same prohibition applied to the Air Canada transactional website between June 30, 2010, and February 8, 2012, and if so, in what way. [ 13 ] The appellant submits that Air Canada used a prohibited business practice by demanding a higher price for its tickets than the one advertised, in violation of paragraph 224(

c) of the C.P.A . [ 14 ] It alleges that it has shown that the action it submits is legally tenable and that on this basis, it should be authorized to bring a class action; it names Michael Silas as the member of the group on behalf of whom it intends to bring the class action. The facts [ 15 ] Around July 14, 2010, two weeks after the amendments to the C.P.A . came into force, Michael Silas, browsed the Air Canada website on his own initiative to purchase a plane ticket.

He wanted to purchase a return ticket from Montreal to Fort Lauderdale. [ 16 ] After going through three steps on the website, he completed his online purchase. [ 17 ] The first step was entitled “Select Flight” and offered the consumer about twenty different flights with four fare options for the trip to Fort Lauderdale, on September 3, 2010, and the same number of fare options for the return trip to Montreal on September 6, 2010. [ 18 ] Before consumers can make a choice, the following warning appears on the screen: All fares displayed on this page are in Canadian dollars , per person for each way of travel, and do not include taxes, fees or some other charges .

Learn more… [ 19 ] Michael Silas chose the “Tango Plus” fare option for direct flights AC924 (to Fort Lauderdale) and AC925 (return to Montreal), each priced at $149. [ 20 ] During this first step, he chose a flight at a specific time for each of his destinations. To purchase his ticket, it was necessary to go to the second step. [ 21 ] The second step, entitled “Review Flight Details”, showed the breakdown of the ticket price. The website displayed the following warning:

The grand total shown includes all taxes, fees, fuel surcharges where applicable and other charges. Fares shown are the best available uniform rates at this time for the number of tickets requested and the selected travel times and fates.

Fares are not guaranteed until you purchase your ticket. [ 22 ] At this point, the following information appeared on the screen: VIEW QUOTE DETAILS Total charge for 1 adult Departing Flight ( Tango plus ) 149.00 Returning Flight ( Tango plus ) 149.00 Options 0.00 Taxes, fees, charges and surcharges 124.46 Grand Total - Canadian dollars $422.46 CAD [ 23 ] At the conclusion of this second step, consumers must indicate if they accept the advertised price and whether they want to proceed to the next step. [ 24 ] The third and final step is on the page entitled “Billing & delivery information”.

Consumers are asked to review their itinerary. If they accept the advertised price, they must provide credit card information to purchase their ticket. [ 25 ] After purchasing the selected return plane ticket, consumers are redirected to a web page confirming the reservation and detailing the ticket just purchased. [ 26 ] Air Canada then sends the electronic ticket purchased by the consumer and the transaction receipt by email.

The price of the ticket is once again broken down. [ 27 ] The appellant alleges that the $149 price consumers see at the first step is an advertised price within the meaning of paragraph 224(

c) C.P.A . and that Air Canada should have announced the real price, the one found in the second step, from the very beginning, taxes and some fees excluded. [ 28 ] On February 8, 2012, Air Canada modified its website and the way it advertises its prices. The total price is now displayed at the first step. Trial judgment [ 29 ] The judge acknowledged that the price advertised on Air Canada’s transactional site was an advertisement within the meaning of

section 224 C.P.A . He deemed that the transactional site was interactive and progressive and did not include any prohibited business practices because there were two prices indicated, one at the first step and the other at the second step.

He was therefore more concerned with determining whether the consumer could be misled by the fact that two different prices were posted on the transactional site. [ 30 ] To that end, he deemed it necessary to analyze the general impression that the representations on the website as a whole might give a credulous and inexperienced consumer. [ 31 ] In light of the warnings to consumers throughout the experience on the website, their knowledge of travel, and the fact that they could not purchase the ticket before the third step, the judge failed to see how even the most credulous and inexperienced consumer could be deceived.

Consequently, the judge found that the appellant had failed to show that the facts alleged appeared to justify the conclusions sought, the test under paragraph 1003(

b) C.C.P . [ 32 ] The judge also found that the test under paragraph 1003(

a) C.C.P . was not met because the intended group was too broad and made no distinction between domestic and international travellers, who are charged different amounts depending on their destination; each case might therefore turn on its own facts. [ 33 ] Furthermore, the judge observed that the proposed class included consumers who purchased their plane ticket on the website and those who purchased it by other means, even though the appellant filed a traditional advertisement only on the morning of the hearing. [ 34 ] He therefore found that the appellant’s strategic choice to cast a wide net and its failure to provide evidence on the traditional advertisements in a timely manner irremediably influenced his capacity to act as representative.

Analysis 1. Preliminary remarks [ 35 ] Air Canada alleges that it is an enterprise subject to the federal legislative and regulatory scheme, not the C.P.A . It seeks to have this issue determined prior to the hearing on the motion for authorization to bring a class action. In an interlocutory judgment, Castonguay, J. postponed this debate to the hearing on the merits to ensure the preservation of the parties’ interest and the fair

administration of justice. [2] At the authorization stage, therefore, the judge took it as true that the C.P.A . could be enforced against Air Canada. [ 36 ] In all likelihood, the issue is a serious one and will require debate that includes the Attorney General of Quebec. Although the question was not discussed at the authorization stage, the authorization of the action will require the issue to be refined. [ 37 ] Second, each of the criteria in

article 1003 C.C.P . must be analyzed on the merits, although they may influence each other. As Pelletier J.A. stated in Del Guidice , [3] [ translation ] “the conditions to bring an action established by the legislator are interconnected, which explains why, in some circumstances, a challenge to one of them may call another into question”. [ 38 ] While it will not be claimed that there is only one proper way to analyze the four criteria in

article 1003 C.C.P ., the following method is particularly fitting to this case. [ 39 ] First, it must be considered whether the personal action of the representative or member designated by the association that intends to act as representative has an “arguable case in light of the facts and the applicable law”, as recently reiterated by the Supreme Court in Infineon . [4] If this question is answered in the affirmative, there is cause to verify whether the representative’s situation is unique or if other individuals find themselves in the same situation, such that their actions raise identical or similar questions.

Third, it must be considered whether the composition of the group makes the application of articles 59 and 67 C.C.P . impracticable. This test is generally met. Finally, it must be determined whether the suggested representative is capable of adequately representing the members who are in the same situation. [ 40 ] In Infineon , [5] the Supreme Court recalls that adequate representation is assessed according to three factors: interest in the suit, competence, and the absence of conflict with the group members.

It adds that “[n]o proposed representative should be excluded unless his or her interest or competence is such that the case could not possibly proceed fairly”. [ 41 ] It also bears pointing out that, when a legal person like the appellant, who represents Quebec consumers in this case, seeks the status of representative, it is not necessary that its mission be connected to all the possible members of the class, but merely to the interest of the designated member. [6] [ 42 ] Thus, the fact that applicant defines the class too broadly or too narrowly does not mean that he or she is necessarily an inadequate representative.

In light of the now well-established principles of representation, we must conclude that the petitioner and the designated member are certainly competent to represent members who find themselves in the same situation as Michael Silas. [ 43 ] Third, it is common ground that the principle of proportionality must be borne in mind while assessing each of the criteria under

article 1003 C.C.P .; the proportionality of the class action does not represent a fifth independent criterion. [7] Certainly, proportionality may play a significant part when the scope of the action is being considered and when common, or “related” issues are determined. [ 44 ] In this case, after managing this case for several months, the judge found that filing a single traditional advertisement on the morning of the hearing of the motion for authorization, when the debate had heretofore been limited to the website, was unacceptable. [ 45 ] Clearly, both the proceedings and exhibits indicate that the debate had concerned the issue of transactions made by Michael Silas on the Air Canada transactional website.

There are no allegations concerning him that indicate that he visited the site after seeing a traditional advertisement or that establish a link between Michael Silas and the traditional advertisement. [ 46 ] The judge exercised his discretion, and he did so reasonably, by refusing to consider the issue of traditional advertisements, especially since the action as submitted would have raised questions of fact and of law that would have inevitably complicated the case. [ 47 ] It is now appropriate to consider whether the designated person’s action may be used as a basis for the class action under the criteria set out in the Act. 2.

Did the appellant demonstrate an arguable case? (paragraph 1003(

b) C.C.P. ) [ 48 ] The appellant’s theory of the case is that the only amount Air Canada may collect from Michael Silas is the advertised price of $149 per flight, which appeared during the first step of navigating the website, plus GST and QST, and the optional charges, such as insurance, meals, and so on. Furthermore, it argues that because Air Canada charged an additional amount of $92.88, which included surcharges, airport improvement fees, and various American taxes, Michael Silas may claim reimbursement of this amount under

section 272 C.P.A. , in addition to $100 in punitive damages. [ 49 ] Air Canada, for its part, maintains that title II of the C.P.A . refers to the precontractual stage, i.e., the advertisement, and that its transactional site is not subject to the Act . In the alternative, it adds that the price advertised at the first step is not an advertised price within the meaning of the C.P.A .

Finally, it asserts that the judge was well-founded to consider the general impression given by the site from the point of view of a credulous and inexperienced consumer (section 218 C.P.A .) and to find that the consumer would not be misled. [ 50 ] These three questions, which are ultimately pure questions of law that the judge answered, will be once again considered.

Taking as true the facts – facts that do not in fact appear to be contested – it is appropriate to consider whether the answer to these questions leads to an acknowledgment that the appellant’s case is arguable. [ 51 ] The president of the Office de la protection du consommateur intervened in the file, in accordance with

section 318 C.P.A ., deeming it necessary to argue its point of view on the

interpretation of the provisions at issue. [8] 2.1 Legislative amendments [ 52 ] On June 30, 2010, significant amendments to the C.P.A . touching on business practices, among other things, came into force. [9]

Specifically,

section 224 C.P.A . was amended to add paragraph ( c ): 224. Aucun commerçant, fabricant ou publicitaire ne peut, par quelque moyen que ce soit:

a) accorder, dans un message public itaire , moins d'importance au prix d'un ensemble de biens ou de services, qu'au prix de l'un des biens ou des services composant cet ensemble;

b) sous réserve des articles 244 à 247, divulguer, dans un message publicitaire , le montant des paiements périodiques à faire pour l'acquisition d'un bien ou l'obtention d'un service sans divulguer également le prix total du bien ou du service ni le faire ressortir d'une façon plus évidente;

c) exiger pour un bien ou un service un prix supérieur à celui qui est annoncé . Aux fins du paragraphe c du premier alinéa, le prix annoncé doit comprendre le total des sommes que le consommateur devra débourser pour l'obtention du bien ou du service. Toutefois, ce prix peut ne pas comprendre la taxe de vente du Québec, ni la taxe sur les produits et services du Canada. Le prix annoncé doit ressortir de façon plus évidente que les sommes dont il est composé. 224. No merchant, manufacturer or advertiser may, by any means whatever: (

a) lay lesser stress, in an advertisement , on the price of a set of goods or services than on the price of any goods or services forming part of the set; (

b) subject to sections 244 to 247, disclose, in an advertisement , the amount of the instalments to be paid to acquire goods or to obtain a service without also disclosing the total price of the goods or services and laying the greater stress on such total price; (

c) charge, for goods or services, a higher price than that advertised . For the purposes of subparagraph c of the first paragraph, the price advertised must include the total amount the consumer must pay for the goods or services. However, the price advertised need not include the Québec sales tax or the Goods and Services Tax.

More emphasis must be put on the price advertised than on the amounts of which the price is made up. [Emphasis added] [ 53 ] As indicated in the explanatory notes for Bill 60, the amendment was made to “make it mandatory for merchants to disclose the total cost of the goods or services they offer”. The purpose is clear. The parliamentary debates also indicate that the practice of breaking down prices was being countered by forcing the merchant to announce the correct price from the start and to put an end to the practice of adding charges, often indicated in fine print, at the time of payment.

The goal was to allow consumers to adequately compare the prices of the goods being purchased. [10] [ 54 ] The prohibited practice established in paragraph 224(

c) is tempered by the Regulation , [11] which adds that merchants are exempted from including the duties chargeable under any federal or provincial Act where, under that Act, the duties must be charged directly to the consumer to be remitted to a public authority: 91.8 The merchant, manufacturer or advertiser is exempt from the obligation arising from the second paragraph of

section 224 of the Act to include, in the advertised price, the duties chargeable under a federal or provincial Act where, under that Act, the duties must be charged directly to the consumer to be remitted to a public authority. 2.2. Does

section 224 C.P.A ., in Title II of the Act , apply to the Air Canada transactional website? [ 55 ] The respondent Air Canada’s argument is based on the fact that when consumers use its online booking system, they do not do so to consult advertising but to purchase tickets. Their objective is to enter into a contract, and this is governed by title I of the C.P.A ., not title II. [ 56 ] This argument is without merit for two reasons. [ 57 ] As we will see below, the Air Canada transactional website can be characterized as both precontractual and contractual.

The price advertised at the first step of purchase ($149) may hardly be considered an offer to enter into a contract by Air Canada because the amount displayed is partial. The offer to enter into a contract appears at the second and third steps of the purchase procedure, when Air Canada indicates a final price and asks the consumer to confirm his or her assent. [ 58 ] Second, the Title II of the C.P.A . creates prohibitions relating to certain practices that the legislator deemed necessary to proscribe.

It is true that several of these prohibitions are intended to ensure that the consumer is informed prior to entering into a contract. As Claudine Roy, J. pointed out in a recent judgment [12] addressing this issue, titles I and II of the C.P.A. are not two isolated and independent sections. There is nothing to prevent title II from also applying to the contractual phase.

2.3. Is the price advertised during the first step of purchase an advertised price within the meaning of paragraph 224(

c) C.P.A.? [59] The Act does not define the expression “price advertised”. It is therefore useful to interpret it, keeping in mind that a broad andliberal

interpretation is appropriate to ensure the fulfilment of the Act’s purpose. As this Court recently noted:[13] [translation] [40] Need we reiterate that legislative

interpretation is governed these days by a single overarching principle: “… the words of

an Act areto be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of theAct, and the intention of Parliament” (Elmer A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983) at 87; Pierre-André Côté in collaboration with Stéphane Beaulac and Mathieu Devinat, Interprétation des lois, 4th ed., (Montreal: Thémis, 2009) paras.1086 and following, at 331 and following; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at para. 21). [41] The CPA is protective legislation purposing to better inform consumers and restore balance between them and merchants (ClaudeMasse,

Loi sur la protection du consommateur: analyse et commentaires (Cowansville, Que.: Yvon Blais, 1999) at 94; Nicole L'Heureux& Marc Lacoursière, Droit de la consommation, 6th ed. (Cowansville, Que.: Yvon Blais, 2011) 26 at para. 17. As its objective is toprevent abuses and secure advantages for consumers, it must receive a broad and liberal

interpretation that ensures "the attainment of itsobject and the carrying out of its provisions, according to their true intent, meaning and spirit" (Interpretation Act, R.S.Q., c. I-16, s. 41),without perverting it. [60] In its ordinary meaning, an advertised price is one that is intended to inform the consumer of the price of the good or servicethat a merchant offers for sale. [61]

Section 224 of the C.P.A. prohibits three different business practices. The first two concern the content of the advertisement,whereas the third is broader and concerns the advertising of the price, without requiring that the said price be included in anadvertisement, as that word is traditionally understood. [62] The Act does define what constitutes an advertisement, however: “a message designed to promote goods, services or anorganization in Québec”.[14] This definition highlights the promotional nature of advertisements, since their purpose is to encourage consumers to purchase.

They may, for example, be sidebars on webpages or promotional emails sent directly to consumers.[15] On theother hand, posting or advertising a price refers to an informational advertisement, since the merchant objectively indicates the price of agood. [63] Use of the term “price advertised” indicates that the legislator wanted to include all forms of advertising, whether promotionalor informational. This is likely the reason it chose a different term under paragraph (

c) of

section 224 C.P.A., seeking to avoid limitingthe application of this

section only to “advertisements”. [64] Second, the price advertised at the first step of purchase on the Air Canada transactional website appears to take both apromotional and informational approach.

By advertising a price that is lower that the one ultimately charged, Air Canada seeks to attractand encourage consumers to continue their search on its transactional site and appears to want to promote the tickets it offers. [65] Air Canada has in fact acknowledged this reality in a case it was involved in before the Transport Agency.[16] In that case, AirCanada argued that consumers are very sensitive to the initial advertised price: [40] With respect to Mr. Wyant's assertion that consumers only compare full fares, Air Canada submits that Mr.

Wyant fails to take intoaccount how fare distribution channels work or the realities of consumer behaviour in response to marketing and advertising strategies.Air Canada indicates that the Web sites and print advertisements of most air carriers worldwide do not display full prices at the onset,and only provide a detailed breakdown of components of the total price once the full itinerary is selected. Air Canada maintains that,contrary to Mr.

Wyant's view that consumers proceed through the various steps on carriers' Web sites to determine a total fare forcomparative purposes, consumers are often sensitive to the initial display of fares, which do not include additional charges, such as a fuelsurcharge, and base their comparison of fares on this display. [41] Mr. Wyant contends that it is nonsensical of Air Canada to assert that incorporating the fuel surcharge into the base fare wouldrender the carrier uncompetitive. Mr.

Wyant submits that the price for a ticket would be the same, irrespective of whether such price iscomprised of the base fare plus a fuel surcharge, or the fare is inclusive of the fuel surcharge. Mr. Wyant further submits that thedecision to purchase a ticket is based on the total fare, and not one component of that fare. Analysis and findings [42] The Agency notes that the vast majority of carriers offering international services departing from Canada, including Air Canada'smajor competitors, currently apply fuel surcharges.

The Agency also notes that fare distribution systems of air carriers, such as Web sitesand computer reservations systems, do not usually quote the full price for travel in initial fare displays. The Agency accepts Air Canada'ssubmission that these initial fare displays have a significant influence on the consumer's decision-making process. Accordingly, theAgency is of the opinion that if Air Canada were required to incorporate fuel surcharges into base fares, the carrier would be at acompetitive disadvantage vis-à-vis other carriers whose initial fare display does not set out a price inclusive of fuel surcharges.

TheAgency notes that although fuel surcharges are not applied on domestic and transborder markets, this is a process that is followed by allcarriers whereas, in contrast, in international markets the vast majority of carriers, in these particular markets, apply a fuel surcharge. [66] As acknowledged by authors Bouchard, Lacoursière, and McCann, Internet advertisements sometimes lets consumers pay electronically to immediately purchase, products promoted online.[17] [67] The judge in fact acknowledged that the appellant had demonstrated that ultimately, the price advertised on the Air Canadawebsite was an advertisement.

He should have found, however, that the respondent advertises the price of its tickets at the first step on

its transactional site. [ 68 ] Thus, the legislative provisions support the argument that even on a transactional site, as soon as the merchant advertises a price, it must reflect the total amount that consumers will be asked to pay. 2.4. Must we consider the general impression that the website as a whole may give the consumer? (section 218 C.P.A .) [ 69 ] In his analysis, the judge found it necessary to consider the general impression the Air Canada site as a whole gives to a credulous and inexperienced consumer and concluded that such a consumer would not be misled. [ 70 ] With respect, the judge should not have applied

section 218 of the C.P.A .: 218. To determine whether or not a representation constitutes a prohibited practice, the general impression it gives, and, as the case may be, the literal meaning of the terms used therein must be taken into account. [ 71 ]

Section 218 C.P.A . specifically concerns representations by merchants to consumers. To assess whether a representation is false or misleading and, consequently, to establish whether it constitutes a prohibited practice, the general impression it gives a credulous and inexperienced consumer must be taken into account, as should the literal meaning of the terms it uses, if appropriate. [ 72 ] Some business practices, however, such as a merchant refusing to perform the warranty he granted on the pretext that he has not received the document evidencing it, [18] must be analyzed objectively.

What must be determined is whether there was a prohibited practice. [ 73 ] That is the case concerning the prohibition on advertising an incomplete or fragmented price. The issue of whether there was a violation must be addressed objectively, and there is no reason to assess whether consumers understood the various elements of the actual price or even whether they were misled. The respondent’s argument that a consumer, even a credulous and inexperienced one, would have understood that the actual price was the one posted at the second step is therefore irrelevant. 2.5.

Conclusion [ 74 ] At this point, it must be found that Michael Silas has shown that he has an arguable case to present. [ 75 ] The whole question of the right to claim damages and the quantum of such damages, if any, remains open however, even though in Time [19] the question as to whether a consumer harmed by a prohibited practice could invoke

section 272 C.P.A . to institute a civil action was answered in the affirmative. 3. Do the recourses of the members raise identical, similar or related questions of law or fact (paragraph 1003(

a) C.C.P .)? [ 76 ] This question, generally considered in light of the proposed class, presupposes that a common denominator will be identified to unify the claims of the class members. [20] [ 77 ] A single common, related or similar issue suffices if it is significant enough to affect the outcome of the class action [21] and it settles a non-trivial portion of the dispute. [22] In fact, it is sufficient if it significantly furthers the members’ claims, without requiring a repetition of the legal analysis. [23] Even where the determination of the common issues does not settle the disputes entirely or in the same way for all the members, and where several small trial must be held at the individual claim settlement stage, the bringing of a class action is not prohibited. [24] [ 78 ] The class proposed by the appellant is undeniably very broad and ill-defined since it includes everyone who has purchased a plane ticket from Air Canada in Quebec since June 30, 2010, whether online, through a travel agent, directly from Air Canada, or by any other means, including those persons who were never even aware of the advertisement. [ 79 ] Considering the judge’s decision not to take traditional advertising into account, a decision that was his to make, we will now consider whether the action of the members who are in the same situation as the designated member raise issues that are, if not identical, then at least similar or related.

Many of the issues raised may be considered jointly, such as: ➢ Is Air Canada subject to the C.P.A .? ➢ Is Air Canada violating paragraph 224 (

c) of the C.P.A .? ➢ If so, are the members of the group entitled to claim damages, in which case, what would they be? ➢ Should punitive damages be awarded? [ 80 ] All these questions are common to the persons who are in the same situation as Michael Silas because they purchased their plane ticket through the website and they further each individual’s case. Establishing the individual claims, however, may require creating various sub-groups or categories, depending on whether the flights were domestic or international, the nature of the charges in question, or any other issue, as the case may be.

It is noteworthy that the appellant is seeking collective recovery. 4. Is the appellant able to ensure the adequate representation of the members? [ 81 ] The judge decided that the appellant’s choice to cast such a wide net without taking into account the various bilateral agreements that might bind Canada to foreign countries or the applicability of the remedies under the C.P.A . and to file the traditional advertisements on the very morning of the hearing compromised his ability to act as representative.

[ 82 ] I find that he was wrong to reach this conclusion. A representative is not inadequate merely because he or she submits an action that could be improved or is too broad. [25] At the risk of repeating myself, no representative should be excluded if he or she meets three conditions: interest in the suit, which is in this case that of the designated person, competence, and the absence of conflict with the group members. [26] [ 83 ] Michael Silas has an interest in the suit. The dispute falls within the mission of the appellant, Union des consommateurs, to protect and defend consumer rights.

One might think that such an organization is well placed to act as representative because of the investment of time and energy required to see a class action through to the end and especially because of the expertise generally held by this type of organization. As Professor Pierre-Claude Lafond correctly points out, the benefits to consumers of being represented judicially by an organization are incomparable. [27] [ 84 ] There is no conflict on the horizon between the members, at least in the dispute as currently defined. Conclusion [ 85 ] The appellant has demonstrated that the conditions of

article 1003 C.C.P . have been met. The class must be redefined according to objective criteria, however, although without being vague or circular, [28] so that potential members may recognize that they are part of the class. [ 86 ] I would therefore allow the appeal, with costs, and authorize the bringing of a class action, with costs to follow.

I would, however, suggest that the class be defined so that it includes persons who are in the same situation as Michael Silas, that is to say, consumers within the meaning of the C.P.A ., residing in Quebec at the time of purchase, who bought a ticket from the respondent on its website between June 30, 2010, and February 8, 2012. DOMINIQUE BÉLANGER, J.A.