Docket: 1923 Rosa Alves, Danielle Bercovitch, Brendan Kennedy, Inez Sanche, v. Peter Tatham, 2011 SKCA 118

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 118 Date: 20111018 Between: Docket: 1923 Rosa Alves, Danielle Bercovitch, Brendan Kennedy, Inez Sanche, and Peter Tatham Appellants (Plaintiffs) - and - First Choice Canada Inc., MyTravel Canada Holidays Inc., Red Seal Vacations Inc., Thomas Cook Canada Inc., and Transat A.T. Inc. Respondents (Defendants) Coram: Vancise, Richards and Caldwell JJ.A. Counsel:

E.F. Anthony Merchant, Q.C. and Casey R. Churko for the Appellants Sally A. Gomery and Jamie MacDonald for the Respondent, MyTravel Canada Holidays Inc. Timothy J. Law for the Respondent, First Choice Canada Inc. Bradley D. Hunter and Dean C. Stanley for the Respondent, Transat A.T. Inc. Mirilyn R. Sharp for the Respondent, Red Seal Vacations Inc. Appeal: From: 2010 SKQB 104 Heard: November 8, 2010 Disposition: Appeal dismissed Written Reasons: October 18, 2011 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Caldwell Richards J.A. I.

Introduction [ 1 ] This is an appeal from a Queen’s Bench decision refusing to certify a proposed class action. [ 2 ] The appellants had unsatisfactory holidays in Cuba during the Christmas period of 2004. Their problems were related to alleged water shortages at resort hotels in the Holguin region of that country. In light of their experiences, the appellants commenced an action against the respondent tour companies.

They sought certification on behalf of all individuals who purchased or took vacations at a total of eight Holguin resort destinations between November 1, 2004 and February 1, 2005. [ 3 ] The certification judge rejected the application on the basis that it did not meet a number of the prerequisites for certification found in s. 6 of The Class Actions Act , S.S. 2001, c. C-12.01 (the “ Act ”). The appellants say he erred and invite this Court to overturn his decision. [ 4 ] I conclude, for the reasons set out below, that this appeal must be dismissed.

The appellants have not satisfied all of the requirements for certification and, as a result, the certification judge made no error in deciding as he did. [ 5 ] By way of clarification, I note that this decision is being released concurrently with the decisions in Helen Roussy v. Red Seal Vacations Inc. ( 2011 SKCA 116 ) and Red Seal Vacations Inc. v. Rosa Alv es ( 2011 SKCA 117 ). Those appeals stem from the same proceedings as those in issue here.

However, they concern the separate questions of whether Helen Roussy should be included in the proceedings as a plaintiff and, if not, whether the claim against Red Seal Vacations Inc. should be dismissed on the basis that there is no representative plaintiff with a claim against it. II. Background [ 6 ] The respondents, First Choice Canada Inc. (“First Choice”), MyTravel Canada Holidays Inc. (“MyTravel”), Red Seal Vacations Inc. (“Red Seal”), Thomas Cook Canada Inc. (“Thomas Cook”) and Transat A.T.

Inc. (“Transat”) sell vacation packages. [ 7 ] The claims of the appellants relate to what their Third Amended Statement of Claim (the “Statement of Claim”) refers to as the

“Holguin Resorts,” a term defined as comprising eight resorts in the Holguin region. Those resorts are Playa Costa Verde, Club Amigo Atlantico Guardalavaca, Club Covarrubias, Maritim Costa Verde Beach, Playa Pesquero, Grand Playa Turquesa, Brisas Guardalavaca, and Sol Rio de Luna y Mares. [ 8 ] The appellants each claim to have purchased a vacation package to a Holguin Resort from one of the respondents.

Their relationships in this regard are as follows: First Choice--Inez Sanche and Peter Tatham MyTravel/Thomas Cook--Rosa Alves and Brendan Kennedy Transat--Danielle Bercovitch [ 9 ] The appellants say the Holguin Resorts could not provide “Basic Water Related Amenities.” The Statement of Claim defines that concept in this way: “Basic Water Related Amenities” includes sufficient supplies of fresh water and water pressure to operate or provide: cleaning services; drinking water; reasonably safe food preparation facilities; Landscape Attractions; facilities to launder bedding, linens, tablecloths, towels and washcloths; Recreational Facilities; and showers, baths, sinks and toilets; to a degree reasonably expected from four or five star holiday resorts. [ 10 ] The Statement of Claim further asserts that the respondent travel companies knew the resorts in question could not supply Basic Water Related Amenities.

It describes the respondents’ alleged liability in all of this by reference to breaches of “duty of care” and “contract.” It does so in these terms: 19. Defendants owed each Plaintiff a contractual duty and duty of care to provide Basic Water Related Amenities at Holguin Resorts. 20. Before and after selling Holguin Vacation Packages to Plaintiffs, Defendants received numerous reports about the lack of Basic Water Related Amenities from: (

a) Defendants’ employees and agents who were stationed in the Holguin region and at Holguin Resorts; (

b) Defendants’ independent contractors; (

c) travel agents who sold Holguin Resort Packages on behalf of Defendants; (

d) proprietors of Holguin Resorts; and (

e) oral and written consumer complaints. … 22. Defendants breached their duty of care by: (

a) failing to take reasonable care to see that the accommodations at Holguin Resorts were suitable for habitation at the level of luxury travellers could reasonably expect; (

b) selling Holguin Vacation Packages when they knew that Holguin Resorts could not provide Basic Water Related Amenities; and (

c) failing to inform Plaintiffs and travel agencies of the lack of Basic Water Related Amenities at Holguin Resorts. 23. Because Holguin Resorts did not provide Basic Water Related Amenities, Defendants breached their contracts with Plaintiffs. Plaintiffs were deprived of the holidays they contracted for. (

a) The provision of Basic Water Related Amenities was a fundamental term of each contract to provide a Holguin Vacation Package to Plaintiffs. (

b) Defendants failed to provide Plaintiffs with Holguin Vacation Packages of the quality contracted for. (

c) By failing to provide Basic Water Related Amenities, Defendants fundamentally breached their contracts with Plaintiffs. [ 11 ] The Statement of Claim concludes by requesting an award of damages on behalf of “the Class,” a term defined in para. 6 (

c) as

meaning “all persons who purchased a Holguin Vacation Package or stayed at a Holguin Resort pursuant to a Holguin Vacation Package.” III. The Basic Legislative Framework [ 12 ] The certification of class actions is, of course, governed by the Act . Section 6(1) of the Act sets out five matters that are prerequisites to certification: 6(1) Subject to subsections (2) and (3), the court shall certify an action as a class action on an application pursuant to

section 4 or 5 if the court is satisfied that: (

a) the pleadings disclose a cause of action; (

b) there is an identifiable class; (

c) the claims of the class members raise common issues, whether or not the common issues predominate over other issues affecting individual members; (

d) a class action would be the preferable procedure for the resolution of the common issues; and (

e) there is a person willing to be appointed as a representative plaintiff who: (

i) would fairly and adequately represent the interests of the class; (ii) has produced a plan for the class action that sets out a workable method of advancing the action on behalf of the class and of notifying class members of the action; and (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members. IV. The Decision Under Appeal [ 13 ] The appellants filed a certification application in November of 2008. They sought certification on the following terms: (

a) certifying this action as a multi-jurisdictional class action or one or more multi-jurisdictional class actions, on the following terms: (

b) defining the Class or a Subclass in Canada as “all persons who have purchased a holiday through the Defendants for Holguin, Cuba for the period of travel between November 1, 2004 and February 1, 2005”; (

c) appointing Inez Sanche as representative plaintiff for a Class, or, if necessary, one or more representative plaintiffs for one or more Subclasses; (

d) stating the nature of the claims, and the relief claimed, regarding the acts, omissions, wrongdoings, and breaches of legal duties and obligations, included but not limited to, deceit, misrepresentation, negligence, intentional, and negligent misrepresentation by the Defendants, that caused injury, economic loss, and damages to the Class who contracted with the Defendants for the purchase of the vacation packages offered through the Defendants on the faith of their marketing; (

e) certifying the following issues as common issues: #1 Was there a duty of care owed by the Defendants to the Plaintiffs? #2 Did the Defendants breach that duty of care? #3 Was there a fundamental breach of the contract between the Defendants and the Plaintiffs? #4 Was there a breach of warranty or a misrepresentation on the part of the Defendants in marketing the hotels? #6 ( sic ) Did the Class Members suffer damages and, if so, what ( sic ) the appropriate measure of damages should be? #7 Should punitive and exemplary damages be awarded against the Defendant and, if so, what amount? [ 14 ] The certification judge considered the appellants’ application by examining each of the considerations listed in s. 6(1) of the Act .

As explained in more detail below, he concluded they had failed to satisfy the requirements of s. 6(1) (b) (identifiable class), s. 6(1) (c) (common issues) and s. 6(1) (d) (preferable procedure). He also concluded, in respect of s. 6(1) (a), that the pleadings disclosed a cause of action only in relation to breach of contract and, even then, only with respect to individuals who had actually stayed at a Holguin Resort. [ 15 ] In the end, as indicated above, the judge refused to certify a class proceeding.

V. Analysis [ 16 ] The appellants have, in effect, put in issue the largest part of the decision of the certification judge. As a result, it is necessary to comment on each of the requirements for certification as they appear in s. 6(1) of the Act . I propose to address them in turn. A. Section 6(1)(a): Do the Pleadings Disclose a Cause of Action? [ 17 ] The decision of this Court in Hoffman v. Monsanto Canada Inc. , 2007 SKCA 47 , 283 D.L.R. (4th) 190 speaks to the burden borne by a plaintiff seeking to certify a class proceeding.

Cameron J.A. indicated that, as regards the requirement that the pleadings disclose a cause of action, the proposed representative plaintiff must show a plausible basis for supposing the defendants could be liable to the claims of the class. He wrote as follows at para. 50: ... the representative plaintiffs must persuade the court that there exists a plausible basis for supposing the defendants could be liable to the claims of the class.

This is a way of saying, simply and effectively, that the representative plaintiff has to satisfy the judge that the pleadings disclose an apparently authentic or genuine cause of action on the basis of the facts as pleaded and the law that applies. ... [ 18 ] This is the touchstone for any consideration of s. 6(1) (

a) of the Act . Several points raised by the appellants must be examined in light of it.

(1) The Claims of Individuals Who Did Not Stay at Holguin Resorts [ 19 ] The certification judge began his discussion of s. 6(1)(

a) by observing that the Statement of Claim contemplated an action advanced on behalf of both individuals who had stayed at a Holguin Resort and on behalf of those who had purchased a Holguin vacation package but ultimately did not stay at a Holguin Resort. He noted that the Statement of Claim contained no allegations of fact in relation to the members of the latter group. As a result, he concluded that no cause of action had been advanced on their behalf. [ 20 ] The appellants say the judge erred in this regard.

They rely on an affidavit sworn by Marc Tremblay and say it provides the basis for including in the class proceedings all those individuals who purchased Holguin vacation packages but did not stay at Holguin Resorts. [ 21 ] In his affidavit, Mr. Tremblay says he and seven other people travelled to Holguin pursuant to a First Choice vacation package. They did so for the purpose of staying at the Grand Playa Turquesa Resort (one of the Holguin Resorts).

On arrival in Cuba on January 3, 2005, they were advised of a shortage of water at the Grand Playa Turquesa and were taken on a seven hour bus ride to another hotel where, apparently, conditions were satisfactory for the duration of their stay. Mr. Tremblay’s complaint, as detailed in his affidavit, is that the bus trip to the alternate resort was long and difficult, without proper drinking water or restroom facilities. [ 22 ] For my part, I am unable to see how the information in Mr.

Tremblay’s affidavit can serve to create a cause of action with respect to individuals who purchased Holguin vacation packages but did not stay at Holguin Resorts. This is so because the inquiry into the existence of a cause of action under s. 6(1) (

a) of the Act is, by the terms of s. 6(1) (

a) itself, restricted to what is found in the “pleadings.” This would include the statement of claim, any demand for particulars and the reply to any such demand. See, for example: Holmes v. Jastek Master Builder 2004 Inc. , 2009 SKQB 421 , 345 Sask. R. 121 at para. 9 . [ 23 ] Accordingly, the inquiry into the s. 6(1) (

a) aspect of a certification application has two dimensions. First, the claim as revealed in the pleadings must be one which is known to law or reasonably arguable in law. Second, the facts, as pleaded, must support the claim. See: Hoffman v. Monsanto Canada Inc., supra at para. 35. [ 24 ] It is possible to read the Statement of Claim as advancing a legal claim on behalf of individuals in Mr. Tremblay’s situation. This is so because para. 29 does seek relief on behalf of the “Class” and “Class” is defined in para. 6 (

c) as meaning “all persons who purchased a Holguin Vacation Package or stayed at a Holguin Resort pursuant to a Holguin Vacation Package.” This, arguably, could include individuals, like Mr. Tremblay, who purchased a Holguin vacation package but ultimately were obliged to stay elsewhere because of the alleged water shortage. [ 25 ] The difficulty, however, is the one identified by the certification judge. The Statement of Claim does not assert facts indicating that the respondent tour companies transported some individuals away from Holguin Resorts because of a water shortage.

Nor does it assert facts relating to the experiences of individuals such as Mr. Tremblay who might have been moved in this fashion. Rather, the factual aspect of the Claim is focused exclusively on the situation of those persons who spent their holidays at Holguin Resorts and experienced water shortages at them. Thus, for example, para. 18 of the Statement of Claim sets out the foundation of the proceedings in these terms:

18. While staying at Holguin Resorts, due to a lack of Basic Water Related Amenities: (

a) Available water was brown and discoloured. (

b) Housekeeping staff could not supply Plaintiffs with clean sheets, towels, and wash cloths. (

c) Kitchen staff cleaned cutlery and dishes with dirty, unlaundered cloths in lukewarm and unsanitary water. (

d) Dining Areas were unsanitary and unclean. (

e) Plaintiffs were unable to take hot baths or showers. (

f) Plaintiffs could not use or flush their toilets. Their toilets were dirty and stinky. Alternatively, Plaintiffs had to fill their toilets with buckets containing water from distant sources which Plaintiffs had to get and carry to their rooms. (

g) Public toilets in Dining Areas and Recreational Facilities could not be flushed. They contained fecal matter and urine. Bathrooms were noxious and unsanitary. (

h) Plaintiffs could not use Recreational Facilities. [ 26 ] Thus, to repeat, there is simply no reference in the Statement of Claim to a water shortage forcing a change of resorts for individuals in Mr. Tremblay’s situation or to the kinds of things that Mr. Tremblay says he experienced during the course of travel to an alternate resort.

Therefore, in the end, the certification judge correctly concluded that no proper cause of action had been pleaded in relation to the group of individuals who purchased Holguin vacations not ultimately spent at Holguin Resorts. [ 27 ] I should note here that, although this part of the argument was sometimes advanced with reference to individuals who “purchased Holguin vacations but did not stay at Holguin Resorts,” this presentation of the matter is not quite on the mark.

At least with respect to the cause of action in contract, presumably all those individuals who purchased Holguin vacations would have a claim against the respondent tour companies whether they themselves spent time at a Holguin Resort or not. For example, if a grandmother bought Holguin vacations as Christmas gifts for her grandchildren, she would have a potential claim for breach of contract even if she herself did not accompany them to Cuba.

Conversely, the simple fact an individual stayed at a Holguin Resort during the relevant time period would not give him or her a claim for breach of contract if he or she had no contractual relationship with one of the respondent tour companies. [ 28 ] The appellants suggest that the certification judge erred in relation to individuals in Mr. Tremblay’s position because Mr. Tremblay’s circumstances do, in fact, come within the scope of the Statement of Claim as it stands. They say this is because Mr.

Tremblay says he suffered from a lack of water during the course of his bus trip to the alternate resort and thus, in their view, he suffered “compensable water shortage related harm” just like those individuals who stayed at a Holguin Resort. This line of argument is not persuasive. In my view, the wording of the Claim cannot be stretched to cover those individuals in Mr. Tremblay’s situation.

At least in factual terms, it is clearly concerned only with those individuals who spent time at Holguin Resorts. [ 29 ] The next question, then, is whether the certification judge should have directed or permitted the amendment of the Statement of Claim so that it properly brings individuals like Mr. Tremblay within its reach. Although not advanced in this way by the appellants, the argument in their favour on this point would be that, like the individuals who actually stayed at the Holguin Resorts, Mr. Tremblay and those in a similar situation (

a) did not receive what they contracted for when they purchased their holiday packages and, (

b) suffered damages as a result of “negligent selling.” This seems to be the correct view of the matter. Accordingly, as a bottom line, what is missing from the Statement of Claim is not so much the purely legal dimension of a cause of action on behalf of individuals in Mr. Tremblay’s position. What is missing is an assertion of facts relating to their particular circumstances. [ 30 ] However, the problem with all of this is that, as explained by counsel, the certification judge had no proposal before him as to how the Statement of Claim might be rehabilitated to properly account for individuals in Mr.

Tremblay’s position. This was so even though MyTravel clearly asserted in its Queen’s Bench certification brief (dated some six months before the appellants’ brief) that the appellant’s pleadings were defective in relation to individuals who had not stayed at Holguin Resorts. In this Court, the appellants’ Notice of Appeal makes no reference at all to this issue and they made no concrete suggestions or requests with respect to this point in their factum or during the course of argument.

Rather, except for the point referred to at para. 28 above, they relied exclusively on highly generalized submissions about the need to take a liberal approach to certification. [ 31 ] Speaking generally, it is obviously not acceptable to simply assume a court will, on its own initiative, repair the problems found to exist in the certification application. A court must operate with an eye to satisfying the objectives of the Act and with sufficient flexibility to ensure that justice is done.

It must also be sensitive to the reality that new facts and insights into claims can emerge during the certification process as affidavits are filed and arguments are sharpened. Reasonably liberal efforts should be made to accommodate such developments by way of amendments to the pleadings, adjustments to common issues and otherwise. Sometimes the judge or court

might have suggestions or thoughts about how best to proceed. However, all of that said, counsel have an obligation to do more than place the raw ingredients of a class action before the court and then expect the court itself to construct a viable proceeding. This is especially so at the appellate level. [ 32 ] There are no bright lines in any of this. Each case will have its own dynamics.

But, while avoiding an unreasonably rigid approach to the certification process and appreciating its somewhat evolving nature, a judge or a court must nonetheless avoid being inappropriately conscripted into the role of ongoing assistant to one side or the other of the litigation. [ 33 ] In light of the particular circumstances and history of this proceeding, I am not inclined to decide this appeal in a way which would allow the appellants, either in this Court or the Court of Queen’s Bench, yet another opportunity to suggest how the Statement of Claim might be changed to include claims relating to the vacation packages of individuals who did not stay at a Holguin Resort.

The certification judge made no error in his handling of this issue. ( 2) The Claim in Negligence [ 34 ] The certification judge characterized the appellants’ negligence claim as involving an allegation of “failure to warn” in relation to water shortages. He said the pleadings were defective on this point because they made no reference to any detrimental reliance by the appellants on the respondents’ representations. [ 35 ] The certification judge came to his view of the negligence claim by placing considerable reliance on Frey v.

BCE Inc. , 2006 SKQB 328 , [2006] 12 W.W.R. 545, a case where Justice Gerein reviewed pleadings concerning a “duty to inform.” The certification judge emphasized various aspects of the pleadings in Frey and saw them as a parallel to the present proceedings. With respect, this line of analysis is not convincing. The statement of claim in Frey was substantially different than the one in issue here. It specifically alleged that the defendants in that matter had “misrepresented” the nature of certain charges and used language allied to this argument.

I can see no useful analogy or connection between it and the Statement of Claim in this case. [ 36 ] With this concern in the background, the appellants contend the certification judge mischaracterized or misunderstood their claim in negligence. They say the claim is not one of negligent misrepresentation or failure to warn but rather one specifically based on a breach of duty of care in the sale of the vacation packages. They explain their position as follows at para. 26 of their factum: 26.

On a correct view of this claim, the asserted negligence was in the way that the Respondents selected and sold the packages. Given the reports they had that Holguin resorts had no water, they should not have sold vacation packages to that region during that time. The Appellants’ theory is that no reasonable travel provider can sell vacation packages to luxury resorts that have no water. … [ 37 ] In general terms, I agree with the appellants on this point.

Although their pleadings are far from clear or consistent, on balance the Statement of Claim does lean in the direction of what they refer to as a “selling” claim. This is a theory of liability which, at least in the abstract, can be taken to be of arguable merit in light of decisions like Collette v. Great Pacific Management Co. , 2004 BCCA 110 , 26 B.C.L.R. (4th) 252 and Bouchanskaia v. Bayer Inc. , 2003 BCSC 1306 . [ 38 ] This said, in order to fully assess the question of whether the Statement of Claim actually discloses a cause of action in negligence, as required by s. 6(1) (

a) of the Act , it is necessary to look more carefully at its contents. As noted above, it sets out the negligence claim in these terms: 19. Defendants owed each Plaintiff a contractual duty and duty of care to provide Basic Water Related Amenities at Holguin Resorts. 20. Before and after selling Holguin Vacation Packages to Plaintiffs, Defendants received numerous reports about the lack of Basic Water Related Amenities from: (

a) Defendants’ employees and agents who were stationed in the Holguin region and at Holguin Resorts; (

b) Defendants’ independent contractors; (

c) travel agents who sold Holguin Resort Packages on behalf of Defendants; (

d) proprietors of Holguin Resorts; and (

e) oral and written consumer complaints. … 22. Defendants breached their duty of care by:

(

a) failing to take reasonable care to see that the accommodations at Holguin Resorts were suitable for habitation at the level of luxury travellers could reasonably expect; (

b) selling Holguin Vacation Packages when they knew that Holguin Resorts could not provide Basic Water Related Amenities; and (

c) failing to inform Plaintiffs and travel agencies of the lack of Basic Water Related Amenities at Holguin Resorts. [ 39 ] Paragraph 22, which appears to embody the heart of the appellants’ position, invites confusion because (while referring to only a single duty of care) it details three quite different ways in which that duty is said to have been breached: failing to see if the accommodations were suitable for habitation, selling vacations knowing there was a water shortage, and failing to inform the appellants and travel agencies of the water shortage.

All of this suggests there is in fact more than one duty of care in play and, just as significantly, that the appellants are not relying exclusively on the breach of a “selling” duty to found their action. Nonetheless, as explained, I proceed on the basis of the appellants’ position as clearly expressed in both written and oral argument, i.e. that their negligence claim relates specifically to negligence in the sale of vacation packages. [ 40 ] However, accepting the appellants’ theory of the proceedings immediately engages a number of complications.

This is so because para. 20 of the Statement of Claim alleges that the respondents’ knowledge of the water shortage was obtained both before and after they sold vacation packages to the appellants. This parallels paras. 15 and 16 of the Statement of Claim which, respectively, refer to the respondents selling Holguin vacation packages when they knew of water shortages and selling such packages before learning of such shortages.

This is obviously problematic because it is readily apparent that a claim for negligent “selling” cannot be made out in those situations where knowledge of the alleged water shortage came to the attention of the respondents only after the selling took place. [ 41 ] The picture is further confused by para. 19 of the Statement of Claim which says, not that the respondents had a duty of care to refrain from selling vacation packages to water starved Holguin Resorts, but rather that they owed a “duty of care to provide Basic Water Related Amenities at Holguin Resorts.” A positive duty to provide water is different than an obligation not to sell vacation packages to destinations with water shortages. [ 42 ] There is one more level of difficulty as well.

As noted, para. 29 of the Statement of Claim indicates that the appellants seek damages “[o]n behalf of the Class.” “Class,” in turn, is defined in para. 6(

c) of the Claim as meaning “all persons who purchased a Holguin Vacation Package or stayed at a Holguin Resort pursuant to a Holguin Vacation Package.” What does this mean? Apparently a “selling” claim is being asserted in pursuit of an award of damages in favour of, among others, individuals who had nothing to do with the purchase of a Holguin vacation package but who merely stayed at a Holguin Resort during the relevant time period.

This might include individuals who received vacation packages as gifts, who were diverted to Holguin Resorts after purchasing packages to stay elsewhere or who somehow exchanged other holiday packages for Holguin vacations. [ 43 ] The definition of “Class” and the use of that term in para. 29 also means, as the certification judge pointed out, that claims in negligence are being asserted on behalf of individuals who purchased Holguin vacations but who, for any reason at all, did not themselves stay at Holguin Resorts or experience water shortages.

As noted above, it is not clear how such individuals could successfully make a claim in negligence as the damages in issue (damages being an essential element of a claim in negligence) are described in para. 24 of the Statement of Claim as relating to “loss of enjoyment of vacation” and “disappointment, distress, upset, and frustration.” All of this is presented in reference to the experience of individuals who in fact stayed at Holguin Resorts. [ 44 ] Thus, it can be seen that the pleadings concerning negligence, as presently found in the Statement of Claim, have some very significant problems.

In response to this, counsel for the appellants suggests that, as a matter of principle, the Court should simply repair the deficiencies by either directing or allowing appropriate amendments. I do not agree. [ 45 ] In Sorotski v.

CNH Global , 2007 SKCA 104 , [2008] 1 W.W.R. 386 at para. 26 , this Court indicated that, when considering whether the pleadings disclose a cause of action for purposes of certifying a class proceeding, a judge should read a statement of claim with a view to accommodating inadequacies arising due to “drafting deficiencies” when such deficiencies can be cured by amendments that, in all of the circumstances, the certification judge sees fit and just to allow.

This, of course, remains the case. [ 46 ] But, at the same time, the decision in Sorotski also acknowledged the obvious need for limits on how far a judge or court can act in this regard. The general rule is that litigation must be carried by the litigants and that judges cannot allow themselves to descend into the fray to unduly assist one side of the contest or the other.

In the present context, and as noted above, this means counsel must do more than present the certification judge with the raw material for a claim which, if properly constructed or re-constructed, might be a successful candidate for certification.

[ 47 ] In my view, the problem with the appellants’ negligence claim in this case goes beyond what can fairly be called a “drafting deficiency.” This is not a situation where a focused theory of liability has failed to find expression in a statement of claim because of a mistake or oversight or because of mere inadequacies of language. Rather, the very foundation of the appellants’ approach lacks coherence.

As indicated, it purports to assert a “selling” claim against the respondents on behalf of individuals who were not purchasers, attempts to advance a “selling” claim against the respondents even in circumstances where the respondents did not know of water shortages at the time of the sale, refers to a duty on the part of the respondents to actually provide “Basic Water Related Amenities” and so forth. In other words, the fundamental character of the claim is seriously flawed.

These flaws were not resolved or clarified or addressed during argument. [ 48 ] In the end, bearing in mind both the nature of the Statement of Claim as drafted and the limits on how far a court can or should go to rehabilitate or allow the rehabilitation of pleadings, I conclude the Claim does not disclose a proper cause of action in negligence. [ 49 ] Before closing the discussion of the negligence claim, I should note, as well, that the appellants also presented an alternative-type argument with respect to negligence.

They said that, if they did in fact plead a “misrepresentation” case and should have included reference to detrimental reliance, then the certification judge erred by failing to allow or order an amendment to repair the problem. This is a curious position. A party to litigation does not normally say “I did not plead X but, if I did, then please allow me to amend.” I am not persuaded by the appellants’ submission on this point. [ 50 ] Specifically, I see no reviewable error on the part of the certification judge in relation to the misrepresentation issue.

As he pointed out, the appellants received briefs of law from the respondents well in advance of the certification hearing. Those briefs (particularly the one filed by MyTravel) set out arguments regarding the appellants’ failure to properly plead the negligence cause of action. Despite this, the appellants, at the hearing, chose only to seek to amend the Claim in a minor way concerning the proper naming of a resort.

In these circumstances, I do not believe the certification judge can be reproached for proceeding as he did. [ 51 ] Accordingly, I conclude the appellants have failed to disclose a proper cause of action in negligence in their Statement of Claim. They have already amended the Claim twice and have offered no specific proposal to rehabilitate their pleadings. As a result, in my opinion, they should not be given leave to amend it again in order to repair the problems related to the negligence claim.

(3) The Claim for Breaches of Legislation and Regulations [ 52 ] Paragraph 27 of the Statement of Claim makes vague reference to breaches of unspecified legislation, regulations and the like. It reads as follows: 27.

In continuing to sell Holguin Vacation Packages when they knew that Holguin Resorts could not provide Basic Water Related Amenities, Defendants independently breached consumer protection and unfair trade practices legislation and conventions, ethics, and regulations governing the travel industry. [ 53 ] The certification judge held that it was impossible to ascertain the nature of the claim advanced in this passage and concluded it did not disclose a cause of action.

I agree and do not understand the appellants, at this point, to be contesting this view. ( 4) The Claim for Breach of Contract [ 54 ] The appellants also allege that the respondent tour companies are liable in contract with respect to the provision of Holguin Resort tour packages. Paragraph 23 of the Claim, as noted, provides as follows: 23. Because Holguin Resorts did not provide Basic Water Related Amenities, Defendants breached their contracts with Plaintiffs. Plaintiffs were deprived of the holidays they contracted for. (

a) The provision of Basic Water Related Amenities was a fundamental term of each contract to provide a Holguin Vacation Package to Plaintiffs. (

b) Defendants failed to provide Plaintiffs with Holguin Vacation Packages of the quality contracted for. (

c) By failing to provide Basic Water Related Amenities, Defendants fundamentally breached their contracts with Plaintiffs. [ 55 ] The certification judge found this to be an authentic cause of action within the meaning of Hoffman v. Monsanto Canada Inc., supra . The respondents do not dispute this result. ( 5) Conclusion With Respect to Causes of Action

[56] In the end, like the certification judge, I conclude the Statement of Claim, as drafted, properly reveals a cause of action in contract. But, as found above, it does so only in relation to the purchase of holiday packages for those individuals who actually stayed at HolguinResorts. I will examine ss. 6(1)(

b) to (

d) of the Act from this perspective. B. Section 6(1)(b): Is There an Identifiable Class? [57] The next issue to be addressed is whether the proposed class proceedings involve an “identifiable class” as referred to in s. 6(1)(b)of the Act. [58] In considering this point, it is important to emphasize that the purpose of the class definition required by s. 6(1)(

b) of the Act isthree-fold. First, it identifies those persons who have a potential claim for relief against the defendant. Second, it defines the parametersof the law suit by specifying those persons who will be bound by its result. Third, it specifies the individuals entitled to notice pursuantto the Act. See: Caputo v. Imperial Tobacco Ltd. (2004), (ON SC), 236 D.L.R. (4th) 348 (Ont. Sup. Ct.). [59] In Hollick v.

Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, McLachlin C.J. explained the need for the party seekingcertification to adduce at least some evidence in relation to the “identifiable class” criterion and summarized the situation as follows: 17 … The respondent does not dispute that the appellant's statement of claim discloses a cause of action. The first question, therefore,is whether there is an identifiable class. In my view, there is.

The appellant has defined the class by reference to objective criteria; aperson is a member of the class if he or she owned or occupied property inside a specified area within a specified period of time.Whether a given person is a member of the class can be determined without reference to the merits of the action. While the appellant hasnot named every member of the class, it is clear that the class is bounded (that is, not unlimited).

There is, therefore, an identifiable classwithin the meaning of s. 5(1)(b)… … 19 … The difficult question, however, is whether each of the putative class members does indeed have a claim -- or at least whatmight be termed a "colourable claim" -- against the respondent.

To put it another way, the issue is whether there is a rational connectionbetween the class as defined and the asserted common issues: see Western Canadian Shopping Centres, at para. 38 ("the criteria[defining the class] should bear a rational relationship to the common issues asserted by all class members"). … 20 The respondent is of course correct to state that implicit in the "identifiable class" requirement is the requirement that there be somerational relationship between the class and common issues. … 21 The requirement is not an onerous one.

The representative need not show that everyone in the class shares the same interest in theresolution of the asserted common issue.

There must be some showing, however, that the class is not unnecessarily broad - that is, thatthe class could not be defined more narrowly without arbitrarily excluding some people who share the same interest in the resolution ofthe common issue. … [Emphasis in original] … 25 I agree that the representative of the asserted class must show some basis in fact to support the certification order. … In my view,the class representative must show some basis in fact for each of the certification requirements set out in s. 5 of the Act, other than therequirement that the pleadings disclose a cause of action. … [60] Smith J.A., speaking for this Court in Toms Grain & Cattle Co. v.

Arcola, 2006 SKCA 20, 279 Sask. R. 281, provided someadditional insights into the “identifiable class” concept by writing as follows: [28] However, the mere fact that a group of people is identifiable is not sufficient to render them a class for the purpose of a classaction. In addition, there must be a rational connection between the proposed class definition, the proposed causes of action and theproposed common issues. In effect, the class description must describe persons who in fact have a claim asserted in the statement ofclaim.

This has often been interpreted to mean that all members of the proposed class must have at least a colourable claim and that theclass definition should not be over-inclusive or under-inclusive, sweeping in those who do not have a claim against the proposeddefendants or arbitrarily excluding others who share the same cause of action. See, for example, Mouhteros v. DeVry Canada Inc. (ON SC), 70 O.T.C. 138; (1998), 41 O.R. (3d) 63 (Ont. Gen. Div.), Lau et al v. Bayview Landmark Inc. et al [1999]O.T.C. 220; 40 C.P.C. (4th) 301 (Sup. Ct.).

In addition, the application for certification must provide a minimum evidentiary basis for thecourt to be satisfied that there is a class of more than one person who share the common claim.

Both requirements, that the classdefinition must bear a rational relationship to the causes of action certified and the proposed common issues (and therefore must not beunreasonably over-inclusive or under-inclusive), and that there be an evidentiary basis supporting the factual conclusion that such a classexists (i.e., that all the members of the class have suffered the loss claimed), were upheld by the Supreme Court of Canada in Hollick,supra. [61] The requirement that the appellants show a minimum evidentiary basis for the proposed class definition is important in this casebecause of the appellants’ attempt to sweep into the class “all persons who have purchased a holiday through the Defendants for

Holguin, Cuba for the period of travel between November 1, 2004 and February 1, 2005.” After working through the materials filed by the appellants, the certification judge found this class definition to be overbroad. He said he might have been prepared to allow the appellants to propose an amended class definition covering only the Playa Costa Verde and Playa Pesquero Resorts for the period of December 24, 2004 to January 5, 2005. However, relying on Walton v. MyTravel Canada Holdings Inc. , 2006 SKQB 231 , 280 Sask. R. 1, he concluded even that would not be appropriate and said the requirements of s. 6(1) (

b) of the Act could not be satisfied even if the proposed class was narrowed to those two resorts and a more restricted timeframe. [ 62 ] The appellants say the certification judge erred. In their view, he demanded far more than “some basis in fact” for the class definition and, in addition, failed to consider relevant evidence. In order to assess this line of argument, it is necessary to turn to the affidavit materials relied on by the appellants at the certification hearing.

They consist of two affidavits of Inez Sanche (one of the named plaintiffs), two affidavits of Liesa Spottek (a legal assistant at Merchant Law Group, counsel for the appellants), one affidavit of each of Brendon Ralfe (a computer technician at Merchant Law Group) and Susan Franks (a legal assistant at Merchant Law Group) and, as mentioned above, the affidavit of Marc Tremblay.

In my opinion, a careful review of this material confirms that the proposed class is overbroad. [ 63 ] Before turning to the affidavits themselves, it is useful to underline some aspects of The Queen’s Bench Rules relating to affidavit evidence. Rule 82(2) requires a proposed representative plaintiff seeking certification to file an affidavit. It reads as follows: 82(2) An application for a certification order pursuant to

section 4 of the Act must be supported by an affidavit of the proposed representative plaintiff: (

a) deposing to the proposed representative plaintiff’s willingness to be appointed; (

b) setting out the basis of the proposed representative plaintiff’s personal claim, where applicable, and the reason the proposed representative plaintiff believes that common issues exist for the rest of the members of the class; (

c) setting out objective criteria for determining membership in the proposed class, and providing the proposed representative plaintiff’s best information on the number of members in the proposed class; (

d) setting out sufficient information to establish that the proposed representative plaintiff would fairly and adequately represent the interests of the class and is aware of the responsibilities to be undertaken; (

e) exhibiting a plan for the class action that sets out a workable method of: (

i) advancing the action on behalf of the class; and (ii) notifying class members of the action; and (

f) setting out sufficient information to establish that the proposed representative plaintiff does not have, on the common issues, an interest that is in conflict with the interests of other class members. [ 64 ] Rule 319 is also relevant as it prescribes the scope of the information properly contained in an affidavit and, in the ordinary course, confines affiants to those facts about which they have personal knowledge: 319 Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may under special circumstances be admitted.

The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same; and where affidavits upon information and belief are filed which do not adequately disclose the grounds of such information and belief the court may direct that the costs of such affidavits shall be borne by the solicitor filing the same. R. 319. [ 65 ] The certification judge held that the affidavits filed by the appellants must comply with Rule 319 and proceeded to apply the Rule to the affidavits in issue.

This led him to exclude some of the materials on the basis they were hearsay and the affiants had either not stated their belief in their contents and/or not established the “special circumstances” referred to in the Rule. [ 66 ] In my view, the approach taken by the certification judge in this regard was generally correct. Rule 319 does apply in the context of the certification application.

Indeed, s. 44 of the Act specifically says “[ t ] he Queen’s Bench Rules apply to class actions to the extent that those rules are not in conflict with this Act.” Further, the applicable case law has consistently treated certification applications as being “interlocutory” in nature, as opposed to “final,” such that hearsay evidence which otherwise complies with Rule 319 may be admitted with respect to such applications. See, for example: Hoffman v.

Monsanto Canada Inc. , 2003 SKQB 174 , [2004] 4 W.W.R. 632. [ 67 ] At the same time, when applying Rule 319, it is important to recognize and be alert to the somewhat unusual nature of class proceedings. For example, Rule 82(2)(

c) requires the proposed representative plaintiff to file an affidavit setting out, among other

things, his or her “best information” with respect to the size of the proposed class. While the point need not be decided here, this arguably contemplates the use of evidence provided on the basis of information and belief and thus amounts to the sort of “special circumstances” warranting the receipt of an affidavit sworn on information and belief. More generally, of course, the proponent of a class action need not “prove” his or her case to obtain a certification order. Rather, he or she must only present “some basis in fact” for such an order.

Again, without purporting to decide the point one way or the other, this too might often amount to the “special circumstances” referred to in Rule 319 as being a prerequisite for the receipt of affidavits sworn on information and belief. See: Hoffman v. Monsanto, supra , at paras. 52-56 (Q.B.). [ 68 ] As well, it is important to remember that the question of the admissibility of “hearsay” evidence is not the only one facing the certification judge. If such evidence is introduced, he or she must also consider the weight or significance to be attached to it.

As is obvious, not all evidence provided on information and belief is equally compelling or of equal quality. Although a certification application generally requires an applicant to put forward only “some basis in fact” for the order being sought, a certification judge must nonetheless give careful consideration to the question of whether the admissible evidence meets this burden. With those observations, I turn to the affidavits filed by the appellants in this case. [ 69 ] In her first affidavit, Ms.

Sanche recounts the unhappy experiences of her family during a December 29, 2004 to January 5, 2005 holiday at the Playa Costa Verde Resort. At para. 27 of the affidavit, she mentions being told by an unnamed and unidentified representative of the resort that “this situation” had begun on December 4, 2004. At para. 39, she says the Signature representative at the Resort told her “the water issue” began on December 4, 2004.

She then goes on to say “[o]n the basis of the Notice of Motion for Certification, I believe that all class members share these common issues” and then listed the common issues as stated in the application. [ 70 ] In my view, the certification judge quite rightly refused to accept this broad and general statement as revealing any factual basis for the existence of the class as proposed. He also was right to place no weight on Ms. Sanche’s recount of what she said had been told to her by the Resort and Signature representatives. This is clearly hearsay evidence and, in light of Rule 319, admissible only if Ms.

Sanche was prepared to depose that she believed the statement to be true and why this was so. See, for example: Hicks v. Saskatchewan Crop Insurance Corp. , 2008 SKQB 36 . This was not done. In any event, a vague reference to a “water issue” by an unnamed individual is self-evidently of very limited significance in the context of the issues before the judge. [ 71 ] In her second affidavit, said to be aimed at establishing that proposed class members share common issues, Ms. Sanche exhibits a wide range of materials, most of which has been provided to her by an articling student at Merchant Law Group.

The nature of those materials, as well as an assessment of them, is set out below: (

a) The affidavits of Jean Denault, Anastasia Mirtselis and Danielle Bercovitch--these three affidavits were apparently filed in connection with a motion brought in Quebec asking the Quebec courts to decline jurisdiction in relation to a claim apparently paralleling the one brought by the appellants in this case. The affidavits are extremely brief.

Each refers to a trip taken to Cuba by the affiant during the Christmas period of 2004 and contains a paragraph in which the affiant adopts, as being applicable to herself, an account of problems encountered on the trip as set out in a document entitled “Authorization to Institute a Class Action.” That document is not annexed to the affidavits. Accordingly, the affidavits are unhelpful and the certification judge made no error in deciding not to consider them. (

b) The affidavit of Robert Dawson, President of Sunquest Vacations--this affidavit was also filed in the Quebec action. It briefly describes the operations of MyTravel Holidays with a view to making the point that litigation concerning Holguin holidays and involving his company should proceed in Ontario rather than in Quebec. I see nothing in the affidavit bearing on the matters which were before the certification judge and he was right to place no significance on it. (

c) The affidavit of Rolanda McAvoy--this affidavit was sworn for purposes of these proceedings and, as a result, it is not at all clear why it was exhibited to Ms. Sanche’s affidavit. Nonetheless, it was. The affidavit recounts water shortages and other problems encountered by Ms. McAvoy and her husband during a December 29, 2004 to January 6, 2005 Signature Vacations trip to the Playa Pesquero Resort (a Holguin Resort). At para. 18 of the affidavit, Ms.

McAvoy says she recalls Michel Toupin, a Signature representative at the Resort, saying that “this situation at Playa Pesquero began on December 3 rd or 4 th , 2004 with a minor problem with the water system.” The certification judge looked past the unusual way in which the affidavit was brought before the Court and admitted it. However, he did not consider the comment attributed to the Signature representative because it was hearsay and the affidavit did not comply with Rule 319 in that, in his opinion, Ms.

McAvoy had demonstrated no special circumstances and had not stated either her belief in the truth of the comment or the grounds for such a belief. The judge also pointed out that, even discounting the ordinary application of Rule 319, at best the affidavit showed a “minor problem with the water system” in early December while the Statement of Claim alleged severe water shortages and inhabitable living conditions. At the end of the day, the judge was clearly correct in his assessment of the potential significance of the affidavit. (

d) The affidavit of Sandra Feiden--this affidavit carries no style of cause but it also appears to have been sworn for purposes of this case. In it, Ms. Feiden recounts problems with water shortages during a Sunquest vacation at the Playa Pesquero Resort from December

24, 2004 to January 2, 2005. On January 2, Ms. Feiden says she transferred to another hotel only 15 kilometres away from the Playa Pesquero where there was plenty of water. The certification judge also took this affidavit into account because, although exhibited to Ms. Sanche’s affidavit, it was free-standing. I see no error in any of that. (

e) An

article from The Star Phoenix newspaper dated January 6, 2005--this

article is based on complaints about a water shortage made by Gary Morrison, an individual said to have stayed at the Playa Costa Verde (a Holguin Resort) from December 22 to December 29, 2004. Mr. Morrison is reported as stating the Signature Vacations representative at his resort had said “the situation had been ongoing for more than three of the last four weeks.” However, the

article also reports a Signature Vacations spokesperson as saying there were only “sporadic problems” in the area which did not become full scale until Christmas week when a combination of factors led to water shortages. The spokesperson also said that the affected hotels had experienced water problems at different times. All of this is double or triple hearsay and Ms. Sanche offers no reason for believing it to be true. In view of its self-contradictory nature, the certification judge quite properly decided not to consider the contents of the

article in his decision-making. (

f) An online transcript of a news story from June 15, 2005--the transcript was apparently found on a CTV Montreal website. The story refers to a family’s complaints about an Air Transat holiday at the Playa Pesquero Resort but makes no reference to when the holiday occurred. This material is entirely uninstructive in relation to the certification problem. Again, the certification judge acted correctly in not considering its contents. [ 72 ] Having reviewed Ms. Sanche’s affidavits, I turn next to the affidavit of Brendon Ralfe, a computer technician at Merchant Law Group. It makes two points.

First, that the Merchant Law Group website, advertising a proposed national class action lawsuit (presumably concerning the Holguin Resorts although this is not made entirely clear in the affidavit), attracted a submission from (

a) an unnamed resident of Courtice, Ontario who said she booked a Sunwing vacation to an unspecified destination in “2004,” (

b) an unnamed resident of Saint-Léonard, Quebec who booked a “Sunwing” vacation at an unspecified date and to an unspecified destination, and (

c) an unnamed resident of London, Ontario who booked a Sunwing vacation at an unspecified date for a trip to Santa Lucia, Cuba, not a Holguin Resort. None of this information advances the appellants’ cause. The messages placed on the Merchant Law Group website by the three unnamed travellers are too vague and lacking in specifics to amount to anything useful. They rightly played no

part in the certification judge’s decision. [ 73 ] The first affidavit of Liesa Spottek, another Merchant Law Group employee, exhibits information provided to that law firm by David Le Sauvage. It concerns difficulties Mr. Le Sauvage had with a holiday in Santa Lucia, Cuba, a destination not covered by the appellants’ claim. The affidavit, as a consequence, is wholly irrelevant to the present pleadings. [ 74 ] Ms. Spottek’s second affidavit recounts the results of searches she conducted on something called the “WayBack Machine,” a service that allows a search of archived websites.

The results of her search indicated that, in November of 2004, Air Transat and Red Seal/Sunwing were advertising vacation packages to the Holguin region of Cuba. Signature Vacations was doing the same in August of 2004. All of this is ultimately of no bottom line significance because none of the respondents, as I understand it, contest the fact that they offered and sold such tours at that time. [ 75 ] Mr. Tremblay’s affidavit, discussed to some extent above, says he travelled to Cuba on January 3, 2005 with the aim of staying at the Grand Playa Turquesa Resort pursuant to a First Choice vacation package.

He says that, on arriving, he was told by “Kenia,” a Signature Vacations representative, that “over the last few weeks, some hotels, including the Grand Playa Turquesa, had no water at all.” He also quotes letters from Celia Pentecost described as being from the Customer Services Department of Signature Vacations. The letters themselves are not exhibited to the affidavit but the passage on which the appellants place particular reliance reads as follows: As a result of the drought in Holguin, there was not enough water to generate pressure to the various hotels.

Once the extent of the problem was realized the hotels worked with the Cuban Government to try to alleviate the situation. At this time, Signature Vacations was also notified. However, even with water rationing, the hotels were unable to provide a consistent water supply. [ 76 ] The appellants say the certification judge overlooked this evidence and, on a careful review of his decision, this appears to have been the case. The question, then, is one of what to make of the evidence.

The affidavit certainly does not clearly indicate which hotels were affected by a water shortage or the specific time period in which such problems existed. At the same time, it does present information indicating there was a water shortage at the Grand Playa Turquesa Resort during the “last few weeks” leading up to January 3, 2005.

Beyond that, the picture is entirely uncertain. [ 77 ] Accordingly, taking into account all of the material filed by the appellants, it is apparent that the evidence properly before the certification judge established some basis in fact for claims only in relation to the vacation packages of (

a) those individuals who stayed at the Playa Costa Verde and Playa Pesquero Resorts during the period December 24, 2004 to January 5, 2005, and, (

b) those individuals who stayed at the Grand Playa Turquesa Resort in a two or three week period prior to January 3, 2005. In my view, there is no

legitimate way to somehow use, or extrapolate from, this evidence to construct a factual basis for a certification order, as requested by the appellants, covering “all persons” who purchased a holiday at a Holguin Resort “for the period of travel between November 1, 2004 and February 1, 2005.” [ 78 ] As a result, the proposed class is overbroad not only with respect to the number of resorts and the time period it covers but, as noted previously, it is also overbroad to the extent it sweeps in individuals who stayed at a Holguin Resort but did not purchase their vacation package, i.e. it is overbroad to the extent it sweeps in those individuals who stayed at a Resort but who had no contractual relationship with one of the respondent tour companies. [ 79 ] Having identified all of these difficulties, I accept the certification judge’s assessment that this is a situation where it would be appropriate to certify a class proceeding along the narrower lines revealed by the evidence if the balance of the factors in s. 6(1) of the Act are satisfied.

However, in taking this position, I wish to clarify that I do not endorse the certification judge’s view that s. 6(1) (

b) could not be satisfied even if the scope of the proposed class was restricted to fewer resorts and a dramatically shorter timeframe. In my respectful opinion, his thinking in this regard effectively rolled the “preferable procedure” analysis mandated by s. 6(1)(

d) of the Act back into s. 6(1) (b). This is not to say there is no relationship between the question of identifiable class under s. 6(1) (

b) and the question of common issues under s. 6(1) (c). Clearly, as explained above, there is some interconnectedness in that regard. Nonetheless, the sorts of issues reflected in the quote from the Walton decision on which the judge relied (relating to the problem of finding common issues) are properly brought to bear in relation to the assessment of s. 6(1)(

c) of the Act rather than in relation to the assessment of s. 6(1)(b). C. Section 6(1)(c): Are There Common Issues? [ 80 ] I turn now to s. 6(1)(

c) of the Act and the question of whether the claims of the class members raise common issues. [ 81 ] The certification judge addressed s. 6(1)(

c) in light of his finding to the effect that the only revealed cause of action was in contract. He said the appellants had not put forward common issues with respect to this cause of action and, as a result, he concluded they had failed to satisfy s. 6(1)(c). [ 82 ] In order to consider this aspect of the appeal, some further background is needed.

As noted above, the appellants advanced the following matters as “common issues” in their certification application: #1 Was there a duty of care owed by the Defendants to the Plaintiffs? #2 Did the Defendants breach that duty of care? #3 Was there a fundamental breach of the contract between the Defendants and the Plaintiffs? #4 Was there a breach of warranty or a misrepresentation on the part of the Defendants in marketing the hotels? #6 ( sic ) Did the Class Members suffer damages and, if so, what the appropriate measure of damages should be? #7 Should punitive and exemplary damages be awarded against the Defendant and, if so, what amount? [ 83 ] In the brief filed with the certification judge, the appellants shifted ground and set out the following points as proposed common issues: 1) Did the Holguin Resorts experience water shortage and associated substandard hygienic safety and discomfort during the class period?

If so, to what extent, and did the defendants know? 2) Did the defendants owe class members a duty of care to provide vacation packages to Holguin Resorts that were free from known (or deemed to be known) severe water shortages and associated inhabitable living conditions? 3) Did the defendants owe a duty to warn of known (or deemed to be known) severe water shortages and associated inhabitable living conditions? 4) Did the defendants breach the duties described in #2 and #3 above? 5) Should defendants pay aggravated, punitive and exemplary damages? If so, in what amount? Should they be assessed in the aggregate?

If so, in what amount and how should they be distributed? [ 84 ] The certification judge, as might be expected, based his analysis on the latter set of proposals. The appellants did not suggest this was an error and made their presentation in this Court on the basis that those issues are the ones on which the appeal should turn.

Accordingly, I proceed on that basis. [ 85 ] The appellants dispute the conclusions of the certification judge concerning s. 6(1)(

c) by casting their arguments in the form of a general warning against interpreting the common issues requirement of the Act in a fashion which is too demanding. [ 86 ] I am sympathetic to the overall tenor of the appellants’ submissions on this point. It is well established that, as stated in Western Canadian Shopping Centres Inc. v. Dutton , 2001 SCC 46 , [2001] 2 S.C.R. 534 and Hollick, supra , an issue will be common within the meaning of s. 6(1)(

c) only when its determination is necessary to the resolution of each class member’s claim. However, this said, s. 6(1) (

c) of the Act also makes it clear that common issues need not predominate over other issues affecting individual class members. See: Rumley v. British Columbia , 2001 SCC 69 , [2001] 3 S.C.R. 184 at para. 33 . [ 87 ]

Section 9 of the Act is pertinent in this regard too and serves to put the question of common issues in context. Its most important features are reproduced below: 9. The court shall not refuse to certify an action as a class action by reason only of one or more of the following: (

a) the relief claimed includes a claim for damages that would require individual assessment after determination of the common issues; (

b) the relief claimed relates to separate contracts involving different class members; (

c) different remedies are sought for different class members; … [ 88 ] For its part, the Supreme Court has taken a generous approach to the common issues requirement. In Dutton , supra , the Court explained the common issues concept as follows: 39 ... The commonality question should be approached purposively. The underlying question is whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis. Thus an issue will be "common" only where its resolution is necessary to the resolution of each class member's claim.

It is not essential that the class members be identically situated vis-à-vis the opposing party. Nor is it necessary that common issues predominate over non-common issues or that the resolution of the common issues would be determinative of each class member's claim. However, the class members' claims must share a substantial common ingredient to justify a class action. Determining whether the common issues justify a class action may require the court to examine the significance of the common issues in relation to individual issues.

In doing so, the court should remember that it may not always be possible for a representative party to plead the claims of each class member with the same particularity as would be required in an individual suit. [ 89 ] The facts in Hollick reveal a good deal about the manner in which the commonality requirement is to be applied. The proposed class action in that case was on behalf of some 30,000 people living in the vicinity of a landfill site which was alleged to have caused harm through noise and physical pollution.

The Supreme Court found the commonality requirement to be satisfied because, for any putative class member to prevail individually, he or she would have to show, among other things, that the defendant emitted pollutants. The Court reached this conclusion notwithstanding that the common issue was merely one feature of the liability equation. In so doing, the Court necessarily accepted that many aspects of liability, as well as the question of damages, would have to be determined on an individual basis after the common issues trial.

Nonetheless, it concluded the commonality requirement to have been satisfied. [ 90 ] Such considerations are, of course, all ones of broad principle. In order to deal with the s. 6(1) (

c) issue in this case, it is necessary to descend from the general to the specific. This is the task to which I now turn. [ 91 ] It is perhaps understandable why the certification judge concluded that the appellants had put forward no common issues relating to the cause of action in contract. This is because the list of common issues referred to in the appellants’ certification brief, and quoted at para. 83 above, read as if they are cast only in reference to the negligence claim.

But, at the same time, at para. 38 of their certification brief, the appellants did submit (albeit almost in passing) that the first issue--dealing with whether there had been a water shortage and associated problems with hygiene and safety--was common to “all claims.” This, presumably, is a reference to both the negligence and the contract claims. [ 92 ] This aspect of the appellants’ submissions, of course, had to be appreciated in light of the Statement of Claim. As indicated earlier, it alleges, at para. 19, that the respondent tour companies had a “contractual duty” to provide Basic Water Related Amenities.

It further alleges, at para. 23, that the respondent companies breached their contracts with the individuals who purchased vacation packages to Holguin Resorts. It makes this point in the following terms: 23. Because Holguin Resorts did not provide Basic Water Related Amenities, Defendants breached their contracts with Plaintiffs.

Plaintiffs were deprived of the holidays they contracted for. (

a) The provision of Basic Water Related Amenities was a fundamental term of each contract to provide a Holguin Vacation Package to Plaintiffs. (

b) Defendants failed to provide Plaintiffs with Holguin Vacation Packages of the quality contracted for. (

c) By failing to provide Basic Water Related Amenities, Defendants fundamentally breached their contracts with Plaintiffs.

The Claim then goes on, at para. 24, to say the appellants suffered damages because of these contractual breaches. [ 93 ] In this Court, the Notice of Appeal filed by the appellants made only a very general reference to common issues by stating, as one of three grounds of appeal, that “[t]he Learned Chambers Judge erred in finding no identifiable class and common issues, and in concluding that a class action was not the preferable procedure… .” In their factum, the appellants made no submission of any sort as to the nature of the common issues which might be identified with respect to the contract claim and did not respond in any way to the certification judge’s conclusion that they had advanced nothing by way of common issues in respect of that claim. [ 94 ] Rather, as noted, the appellants’ factum was directed to a very generalized discussion of the need to approach certification in an accommodating manner.

The same held true for oral argument. The appellants said nothing about the common issues in relation to the cause of action in contract. Indeed, counsel went so far as to make the surprising suggestion that representative plaintiffs do not identify common issues.

In his view, “the courts do that.” Only in reply, and only in response to the oral submissions of counsel for the respondent companies, did the appellants refer briefly to the notion that the first point in the common issues identified in their certification brief in the Court of Queen’s Bench (and quoted above at para. 83) represented a common issue in connection with the claim in contract. [ 95 ] Where does this leave the Court?

At best, it appears to leave us to consider a proposed common issue related to the contract claim which is framed in these terms: 1) Did the Holguin Resorts experience water shortage and associated substandard hygienic safety and discomfort during the class period? If so, to what extent, and did the defendants know? [ 96 ] In dealing with this issue, it is necessary to ignore the last part of the concluding sentence dealing with the knowledge of the respondent tour companies. This point seems to be aimed exclusively at the appellants’ claim in negligence. Thus, as a result, the question is whether s. 6(1) (

c) of the Act is satisfied by a common issue aimed at identifying the nature and extent of the water shortages experienced at the Playa Costa Verde, Playa Pesquero and Grand Playa Turquesa Resorts during the relevant time periods. [ 97 ] This proposal might have something of the flavour of what is required under s. 6(1) (

c) of the Act but this is only because it is framed in general language. It assumes there is a single answer to a question about the circumstances at the Holguin Resorts. However, this seems highly unlikely in that the appellants’ claim relates to three entirely separate and geographically distinct facilities and covers a period of at least two full weeks. While there is some basis in fact to indicate there was a water shortage at each resort, there is nothing to suggest those shortages manifested themselves in the same way, with the same intensity, or in the same way over time, at each resort.

Common sense suggests the opposite. [ 98 ] This is not to say a factual matter cannot be approached as a common issue. Clearly it can. See, for example: Hollick v. Toronto (City) , supra where, as noted, the common issue related to whether a single landfill had emitted physical or noise pollution. The difficulty in the present circumstances is that (by framing the common issue as they do) the appellants are, in effect, speaking of three distinct factual situations, i.e. the conditions at (

i) the Playa Costa Verde Resort, (ii) the Playa Pesquero Resort, and (iii) the Grand Playa Turquesa Resort. It is not apparent how, in and of themselves, the circumstances at one of those establishments could be relevant to, or “common” to, the claims of class members who stayed at one of the others. As a result, I do not see how the appellants’ proposed common issue can satisfy s. 6(1) (

c) of the Act . [ 99 ] In the end, I am obliged to conclude the appellants have not met the requirements of s. 6(1) (

c) of the Act with respect to their claim in contract. [ 100 ] This said, it might be possible that there is an alternate approach or approaches to s. 6(1) (

c) of the Act which would satisfy its requirements. For example, and without in any way attempting to resolve the point one way or the other, it might be that there is a common issue relating to whether there is an implied term in the vacation package contracts to the effect that amenities will be available as advertised. Further, and again without attempting to consider the merits of the point one way or the other, some of the difficulties in the appellants’ approach in this case might have been capable of being managed through the use of subclasses. However, I have chosen

not to travel into this territory given that it is so far beyond the reach of the appellants’ submissions and was not, in any way, the subject of comment or argument by counsel on either side of this case. Similarly, in light of the minimal amount of attention the appellants have chose to pay to this point, I do not think they should be given leave to have another opportunity to sort it out. [ 101 ] In the end, the appellants have not satisfied s. 6(1) (

c) of the Act . D. Section 6(1)(d): Is a Class Action the Preferable Procedure? [ 102 ] The fourth certification criterion concerns the question of whether a class action is the preferable procedure for resolving the claims of the class members. This inquiry has two elements. The first is whether the class proceeding is a fair, efficient and manageable method of advancing the claim.

The second is whether a class proceeding would be preferable in relation to other procedures such as joinder, test cases, individual actions and so forth. [ 103 ] In Hollick , supra , McLachlin C.J. made the following comments about the preferability inquiry: 27 I cannot conclude, however, that "a class proceeding would be the preferable procedure for the resolution of the common issues", as required by s. 5(1)(d).

The parties agree that, in the absence of legislative guidance, the preferability inquiry should be conducted through the lens of the three principal advantages of class actions - judicial economy, access to justice, and behaviour modification ... 28 The report of the Attorney General's Advisory Committee makes clear that "preferable" was meant to be construed broadly.

The term was meant to capture two ideas: first the question of "whether or not the class proceeding [would be] a fair, efficient and manageable method of advancing the claim", and second, the question of whether a class proceeding would be preferable "in the sense of preferable to other procedures such as joinder, test cases, consolidation, and so on": Report of the Attorney General's Advisory Committee on Class Action Reform, supra , at p. 32.

In my view, it would be impossible to determine whether the class action is preferable in the sense of being a "fair, efficient and manageable method of advancing the claim" without looking at the common issues in their context. [ 104 ] The certification judge in this case said he could not find in the appellants’ favour on preferability because they had failed to identify any common issues.

Nonetheless, he also said the determination of common issues would “merely mark the commencement as opposed to the completion of the liability inquiry.” Finally, he observed that the appellants had not presented evidence showing class members would find it prohibitively costly to proceed against the respondents by way of small claims actions. [ 105 ] The certification judge was, of course, quite right in flagging the impossibility of properly assessing the preferability question if there are, in fact, no proper common issues. This is really the beginning and end of the matter with respect to s. 6(1) (

d) of the Act . [ 106 ] However, there are two aspects of the certification judge’s additional comments which warrant further mention. The first is his comment to the effect that a class proceeding does not satisfy the preferability criterion if the common issues do not resolve questions of liability. This view misstates the preferability inquiry.

It is entirely possible that a class proceeding will be the preferable procedure even if the resolution of the common issues does not settle the defendant’s liability to individual class members. [ 107 ] In addition, the certification judge erred to the extent he suggested the appellants had an obligation to show it would be “prohibitively costly” for them to proceed against the respondent tour companies by way of small claims actions. This comes at the matter from the wrong direction. Simply put, the question is not whether individual actions are possible .

It is whether a class proceeding is preferable to individual lawsuits. Obviously, depending on the circumstances, a class action can be the preferable procedure even when individual actions are not wholly foreclosed by the cost of litigation. E. Section 6(1)(e): Is There a Proper Representative Plaintiff and Litigation Plan? [ 108 ] The certification judge held that, if certification were to be ordered, Ms. Sanche would be an appropriate representative plaintiff. He also found that, if he had been inclined to certify a class action, a workable litigation plan could have been devised.

These matters were not seriously contested in the proceedings in this Court. As a consequence, and given my conclusions above, I see no need to comment on them further.

VI. Conclusion [ 109 ] I conclude that this appeal must be dismissed. [ 110 ] In light of s. 40 of the Act , there will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 18th day of October, A.D. 2011. “Richards J.A.” Richards J.A. I concur “Vancise J.A.” Vancise J.A. I concur “Caldwell J.A.” Caldwell J.A.