CRYSTAL WATCH PROSPECTIVE PLAINTIFF - v. –, 2022 SKKB 259

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 259 Date: 20 22 11 25 Docket: QBG-RG-00679-2018 Judicial Centre: Regina Brought under The Class Actions Act BETWEEN: CRYSTAL WATCH PROSPECTIVE PLAINTIFF - and – LIVE NATION ENTERTAINMENT INC., LIVE NATION WORLDWIDE INC., TICKETMASTER CANADA HOLDINGS ULC, TICKETMASTER CANADA LP, TICKETMASTER L.L.C., THE V.I.P. TOUR COMPANY, TICKETSNOW.COM, INC., and TNOW ENTERTAINMENT GROUP INC.

PROSPECTIVE DEFENDANTS CORRECTED JUDGMENT: The text of the original judgment has been changed per the corrigendum released January 17, 2023. (A copy of the corrigendum is appended to this corrected judgment.) Counsel: E.F.A. Merchant, K.C., Iqbal S. Brar, and Anthony Tibbs (by video) for the prospective plaintiff Christopher Richter, James Gotowiec (by video), and Adrienne Oake (by video) for the prospective defendants FIAT MITCHELL J.

NOVEMBER 25, 2022 CONTENTS Paragraphs Overview .. 1 The Parties – The Proposed Plaintiff . 8 The Proposed Defendants . 10 Evidentiary Record – Evidence Filed by the Proposed Plaintiff . 15 Evidence Filed by the Proposed Defendants . 23 Factual Background . 31 Law of Class Actions . 54 Analysis . 68 Section 6(1)(a) – Reasonable Cause of Action . 72 Identifying the Causes of Action Pled . 73 Anaysis of Causes of Action . 76 The Competition Act 7 8

Section 36 of the Competition Act 79 Section 45(1) of the Competition Act 81

Section 46 and 47 of the Competition Act 9 3

Section 52 of the Competition Act 97

Section 54 of the Competition Act 104 Sections 74.01 and 74.05 of the Competition Act 112 Conclusions on Competition Act Claims . 115 Provincial Consumer Potection Legislation . 116 Law .. 119 Discussion . 123 TSA Claim ... 128 Waiver of Tort . 138 Unjust Enrichment - Law .. 141 Analysis . 145 Tort of Civil Conspiracy - Law .. 155 Analysis . 162 Conclusion Respecting Section 6(1)(

a) of the CAA .. 175 Section 6(1)(b) – Identifiable Class: Applicable Legal Principles . 176 Class as Proposed by the Prospective Plaintiff . 181 Discussion . 184 Section 6(1)(c) - Common Issues: Applicable Legal Principles . 194 Analysis . 201

Proposed Common Issues 16 and 17 . 203 Proposed Common Issues 18 and 19 . 207 Proposed Common Issues 20 and Questions 25 . 209 Section 6(1)(d) – Preferable Procedure: Applicable Legal Principles . 216 Analysis . 225 Section 6(1)(e) – Suitable Representative Plaintiff . 237 Applicable Legal Principles . 238 Analysis . 240 Conclusions and Orders . 245 Appendix A .. attached I. OVERVIEW [ 1 ] The prospective plaintiff, Cheryl Watch [Ms.

Watch] or the [plaintiff] seeks an order pursuant to The Class Actions Act , SS 2001, c C-12.01 [ CAA ] certifying this proposed action as a class action. [ 2 ] This proposed action involves two discrete claims as can be discerned from the plaintiff’s Second Amended Statement of Claim dated August 6, 2019. The first claim is related to the operation of the proposed defendant, Ticketmaster’s website, and the manner certain fees forming part of the full ticket price were disclosed to purchasers.

The plaintiff alleges by not disclosing fees associated with a ticket purchase until towards the end of the purchase transaction, rather than the beginning, Ticketmaster has breached various provisions of the Competition Act , RSC 1985, c C-34 . This type of fee display was used on Ticketmaster’s website from September 2015 to June 30, 2018. For ease of reference, this claim will be referred to as the “Representations or Primary Market Claim”. [ 3 ] The second claim involves an entirely different factual matrix, different causes of action, and a different class from the Representations or Primary Market Claim.

It has its genesis in a series of articles published by the Toronto Star [Star] and the Canadian Broadcasting Corporation [CBC] in September 2018 relating to a Ticketmaster product called “TradeDesk”. TradeDesk is a software product used by ticket brokers to assist them with selling “verified tickets” on Ticketmaster’s secondary market sales platform, sometimes referred to as the resale market.

For ease of reference, this claim will be referred to as the “TradeDesk or Secondary Market Claim”. [ 4 ] These articles appeared after reporters from the Star and the CBC attended a convention in Las Vegas, Nevada in July 2018, and posed undercover as professional ticket sellers. They attended a closed-door session hosted by Ticketmaster’s secondary sales division. Subsequently, these reporters filed media reports revealing what they had witnessed which, in turn, triggered an investigation into Ticketmaster’s operations by the Competition Bureau of Canada.

In January 2019, the Competition Bureau announced it found no violation of the Competition Act . Despite this finding, the plaintiff amended her statement of claim to level allegations of a wide-ranging conspiracy among the various proposed defendants and other unnamed “co-conspirators”. [ 5 ] The plaintiff’s claim alleges, among other things, deceptive marketing practices in respect of ticket sales for major concerts and sporting events.

Her pleading goes on to allege that these deceptive marketing practices are contrary to s. 36 of the Competition Act ; The Consumer Protection and Business Practices Act , SS 2013, c C-30.2 [ CPBPA ], as well as consumer protection legislation extant in other provinces; The Ticket Sales Act , SS 2010, c T-13.1 [ TSA ]; breaches of contract, and conspiracy. [ 6 ] The Second Amended Statement of Claim appears to allege the deceptive marketing practices of the Representations or Primary Market Claim also occurred in the secondary market.

The conspiracy which is alleged in relation to the TradeDesk or Secondary Market Claim only affects the secondary market. [ 7 ] Consequently, the plaintiff proposes two separate classes as follows: All persons resident in Canada who, from 2009 to the present:

a) Purchased tickets for events from any one of the defendants; or

b) Purchased tickets for events from any one of the defendants or any co-conspirators through any defendant ticket resale website or electronic platform. II. THE PARTIES A. The Proposed Plaintiff [ 8 ] The proposed plaintiff, Crystal Watch, resides in Regina, Saskatchewan. She is the sole representative plaintiff is this action.

[ 9 ] In her first affidavit sworn December 10, 2018 [First Watch Affidavit], the plaintiff avers that she purchased tickets from one or more of the defendants on separate occasions in 2016 and 2017. At paragraph 26(

i) of her affidavit, she particularizes the details of one set of tickets as follows:

i) two tickets for a Miranda Lambert concert at the Brandt Centre – Evraz Place, taking place October 6, 2017 stated as being priced at $89.00 each on the Ticketmaster denoted stub. The ticket receipt stated the face value of two tickets was $178.00. The additional charges included: Order processing Fee - $4.00; Facility Fees - $4.00; and Convenience Charges - $31.50; For a total payment to the Defendants of $217.50. B. The Proposed Defendants [ 10 ] The defendants are corporate entities allegedly associated with Live Nation and Ticketmaster’s operations in Canada.

Each of these entities were described in the affidavit of Patti-Anne Tarlton sworn January 13, 2020. Three of these entities are holding companies: Ticketmaster Canada Holdings ULC, Ticketsnow.com, Inc., and The VIP Tour Company. [ 11 ] Live Nation Worldwide, Inc. is a venue and concert promotion business reputedly the world’s largest.

In 2010, it merged with Ticketmaster, one of, if not the, largest ticket sales agent in North America. [ 12 ] Ticketmaster Canada LP [Ticketmaster] provides a marketplace where individuals can buy and sell tickets to various music and sporting events throughout Canada and North America. Individuals can purchase tickets in the primary market where Ticketmaster acts as a sales agent for its clients which include entertainment venues, sports teams, musical artists, and promoters to name a few.

Ticketmaster does not own these tickets, it only acts as intermediary for the sale of those tickets to members of the public. [ 13 ] Ticketmaster also provides a platform for ticket purchasers, season ticket holders and professional resellers, to resell tickets to live events. If Ticketmaster’s client consents, individuals can utilize Ticketmaster’s platform to buy and sell tickets in the secondary or resale market. As with the primary market, Ticketmaster does not resell any tickets. [ 14 ] Ticketmaster is a wholly owned subsidiary of Live Nation Entertainment, Inc. [Live Nation].

Live Nation contracts with artists to produce and promote their live events, and contracts with venues to book live entertainments. These contracts are negotiated separately from Ticketmaster’s ticketing contract with the venue. Live Nation and Ticketmaster contract independently of one another. III. EVIDENTIARY RECORD A. Evidence Filed by the Proposed Plaintiff [ 15 ] Ms. Watch filed two affidavits and was subsequently cross-examined on those affidavits. [ 16 ] To the First Watch Affidavit, the plaintiff attached numerous exhibits including, for example: (

a) Copy of an

article from The Globe and Mail newspaper dated January 25, 2018 entitled “Canada’s Competition Bureau sues Ticketmaster, Live Nation over ‘deceptive’ price practices”; (

b) Copy of the Competition Bureau’s news release dated January 26, 2018 entitled “Competition Bureau sues Ticketmaster over misleading ticket price advertising”; (

c) Copy of the Commissioner of Competition’s application to the Competition Tribunal for orders pursuant to s. 74.1 of the Competition Act , in respect of conduct reviewable pursuant to s. 74.01(1) (

a) and s. 74.05 of the Competition Act ; (

d) Copy of Ticketmaster’s “TicketExchange Selling Policy” webpage; (

e) Copy of Ticketmaster’s “Listing & Selling Tickets” webpage accessed on September 25, 2018; (

f) A copy of Ticketmaster Canada’s Terms of Use, last updated September 15, 2016; (

g) Decision of the United States District Court for the Central District of California dated May 29, 2018 with the style of cause Ticketmaster LLC v Prestige Entertainment West Inc. ; (

h) Copy of Toronto Star

article dated September 19, 2018, and entitled “We went undercover as ticket scalpers – and Ticketmaster offered to help us do business”; (

i) Copy of CBC News

article dated September 19, 2018, and entitled “ ‘A public relations nightmare’: Ticketmaster recruits pros for secret scalper program”; (

j) Copy of Ticketmaster’s Professional Reseller Handbook; (

k) Copy of the Commissioner of Competition’s reply dated March 26, 2018; (

l) Copy of the Commissioner of Competition’s motion record dated September 14, 2018; (

m) Copies of various decisions and directions from the Competition Tribunal from April 3, 2018 through to November 9, 2018; and (

n) A draft copy of the Workable Method.

[ 17 ] To her second affidavit sworn July 31, 2019, Ms. Watch attached numerous exhibits including the following: (

a) Copy of news release issued by the Competition Bureau of Canada dated June 27, 2019; (

b) Copy of the public version of the consent agreement dated June 26, 2019 between the Commissioner of Competition and the defendants Ticketmaster LLC, TNow Entertainment Group Inc., and Ticketmaster Canada LP; (

c) Copy of news release issued by the Competition Bureau dated January 25, 2010 entitled “Competition Bureau requires divestitures by Ticketmaster-Live Nation to promote competition”; (

d) Copy of consent agreement respecting the merger of Ticketmaster Entertainment, Inc. and Live Nation Inc. dated January 25, 2010; and (

e) Copy of the “Agreement and Plan of Merger” between Ticketmaster Entertainment Inc. and Live Nation Inc. dated February 10, 2009. [ 18 ] Additionally, Ms. Watch filed two affidavits of Dr. Anindya Sen, the individual she proffered as an expert on this certification affidavit. [ 19 ] To Dr. Sen’s first affidavit sworn July 31, 2019, the following exhibits were attached: (

a) A copy of Dr. Sen’s curriculum vitae; (

b) A copy of Dr. Sen’s opinion respecting the questions posed by the proposed plaintiff [Sen Report]. [ 20 ] To Dr. Sen’s second affidavit sworn February 19, 2020, the following exhibits were attached: (

a) Dr. Sen’s response to the affidavit of Dr. Timothy S. Snail sworn January 13, 2020; (

b) Copy of Dr. Sen’s 2011

article entitled “Retail Gasoline Price Ceilings and Regulatory Capture: Evidence from Canada” and published in the American Law & Economics Review; (

c) Copy of a 2018 study conducted by the U.S. Government Accountability Office [GAO] titled “Event Ticket Sales: Market Characteristics and Consumer Protection Issues” [GAO Study]; and (

d) Copy of a 2016 report from the New York State Office of the Attorney General titled “Obstructed View: What’s Blocking New Yorkers from Getting Tickets” [NYAG Report]. [ 21 ] Additionally, a statement respecting Dr. Sen’s expertise dated August 2, 2019 was submitted. [ 22 ] A copy of the transcript of Ms. Watch’s cross-examination on her two affidavits conducted on July 31, 2019 was also submitted into evidence. B. Evidence Filed by the Proposed Defendants [ 23 ] The proposed defendants filed three affidavits: (1) the affidavit of Ms.

Patti-Anne Tarlton sworn January 13, 2020 [Tarlton Affidavit]; (2) the affidavit of Larry Plawsky sworn January 13, 2020 [Plawsky Affidavit]; and (3) the affidavit of Dr. Timothy Snail sworn January 13, 2020. Dr. Snail was the expert witness proffered by the proposed defendants. [ 24 ] At the time of swearing her affidavit, the affiant, Ms. Tarlton, was the Chairman of Ticketmaster Canada LP, and Executive Vice-President, Venues and Promoters at Ticketmaster North America. [ 25 ] At the time of swearing his affidavit, the affiant, Mr.

Plawsky, was the Executive Vice-President and General Manager of Ticketmaster Resale and Category Management. [ 26 ] Each of these affiants were cross-examined on their affidavits. A copy of the transcript of Ms. Tarlton’s cross- examination conducted on May 15, 2020 was submitted into evidence. A copy of the transcript of Mr. Plawsky’s cross-examination conducted on May 12, 2020 was submitted into evidence. [ 27 ] Ms. Tarlton’s evidence concentrated primarily on Ticketmaster Canada’s operations in the primary market and the manner of fee display on its website. [ 28 ] Mr.

Plawsky’s evidence focussed on Ticketmaster Canada’s operations in the secondary market and on TradeDesk specifically. [ 29 ] At the time of swearing his affidavit, Dr. Snail was a Vice-President of Charles River Associates, an economic consulting firm, and a member of Canada Revenue Agency’s Antitrust and Competition Economics Practice. He has more than 20 years’ experience conducting economic research for commercial litigation. [ 30 ] Dr. Snail attached as Exhibit “B” to his affidavit his expert report [Snail Report]. Dr. Snail was retained to assess the various damage methodologies set out in the Sen Report.

His principal conclusion was that the methodologies utilized by Dr. Sen are incapable of achieving their stated objective of “… determining the existence or magnitude of the alleged overcharges attributable to fee disclosure, price-fixing and umbrella effects.” See: Snail Report, at paragraph 10. IV. FACTUAL BACKGROUND

[ 31 ] As noted, on April 7, 2017, Ms. Watch purchased two tickets to a Miranda Lambert concert at the Brandt Centre/Evraz Place in Regina, Saskatchewan. This concert was scheduled to take place on October 6, 2017. The advertised ticket price was $89 or $178 for two tickets. However, as she proceeded through the various steps to purchase the tickets, various fees were added to the cost, with the result that the two tickets ultimately cost $217.50. [ 32 ] The plaintiff’s main allegation respecting the primary market related to deceptive marketing practices which she calls “price representations”.

She alleges the defendants made certain price representations to prospective buyers at the outset of a transaction on the defendants’ websites. Yet, these representations did not reflect the final price paid due to “Non-Optional Fees” which were added at different stages along the purchasing process. Consequently, Ms. Watch claims that tickets cost more than the advertised price, an amount she characterized as the “overcharge”. [ 33 ] Practically speaking, by the time Ms.

Watch came to the final stage of the purchase process online, she was faced with what she described as “a Hobson’s choice” – either she accepts the tickets at a much higher price than she had anticipated or start all over with the real possibility she might not secure any tickets at all. As an ardent fan of Miranda Lambert, the latter scenario was not an option. [ 34 ] These alleged deceptive marketing practices form the basis for Ms. Watch’s claims of: (1) breach of ss. 52 and 54 of the Competition Act ; (2) breach of contract; (3) breach of the CPBPA ; and (4) unjust enrichment.

However, as noted by the defendants, Ms. Watch does not address her claim asserting a breach of s. 52 of the Competition Act in her extensive written brief of law, so it appears she may have abandoned it. [ 35 ] Turning to the TradeDesk or Secondary Market Claim, Ms.

Watch alleges that the various defendants and their co-conspirators, described at paragraph 13 of the Second Amended Statement of Claim as “… persons whom it is reasonable to believe would have, in the absence of Conspiracy, been likely to have competed with the Defendants with respect to the resale of tickets in Saskatchewan and across Canada”, conspired with the predominant purpose (1) to harm the resale class by requiring them to pay artificially high prices for resale event tickets, and (2) to illegally increase their profits on the sale of resale event tickets. [ 36 ] Further, Ms.

Watch alleges that the defendants “enabled Co-conspirators to utilize the TradeDesk platform to hike or drop prices on reams of tickets for resale on the Defendants’ ticket resale platforms with a few clicks based on the Defendants and the Co-Conspirators’ assessment of resale ticket demand”. See: Second Amended Statement of Claim at para. 74. [ 37 ] These are the factual allegations upon which Ms.

Watch bases her claims of (1) breach of the Competition Act ; (2) civil conspiracy; (3) breach of contract; (4) fraudulent concealment; (5) unjust enrichment; and (6) breach of The Ticket Sales Act , are grounded. [ 38 ] On June 2019, the Commissioner of Competition [Commissioner] entered into a consent agreement with Ticketmaster LLC, TNOW Entertainment Group Inc., and Ticketmaster Canada LP resolving the Commissioner’s investigation into the alleged deceptive fee display on Ticketmaster Canada’s website.

These are the very same allegations raised by the plaintiff in the Representations or Primary Market Claim. [ 39 ] By entering into this consent agreement, Ticketmaster specifically did not admit wrongdoing. Indeed, the recitals to this consent agreement, a copy of which was attached as Exhibit 2 to Ms.

Watch’s second affidavit, the Commissioner acknowledged that commencing in July 2018 the Ticketmaster parties had made changes to its websites and mobile application to advise consumers of additional per-ticket fees. [ 40 ] Respecting the TradeDesk or Secondary Market Claim, in January 2019, the Competition Bureau concluded that Ticketmaster Canada’s conduct in that market did not contravene the Competition Act .

At that time, the Competition Bureau issued a press release which read in part: Recently, allegations were made that Ticketmaster facilitated the mass scalping of tickets through the use of its software, TradeDesk. Generally, consumer protection and unfair business practices, including as they relate to ticket sales, are addressed at the provincial level.

However, the Competition Bureau has examined the matter and has conclude that this conduct has not contravened the Competition Act . [Emphasis added] See: “Competition Bureau concludes investigation into ticket scalper bots”, News Release dated January 31, 2019, Exhibit 1 to the Cross-Examination of Ms. Watch conducted on May 22, 2020. [ 41 ] In this news release, the Competition Bureau states that before arriving at this conclusion, its investigators reviewed “… public allegations, complaints and other evidence including videos and the company’s websites.

The Bureau also examined the company’s behaviour, its marketing practices and its interactions with other players”. [ 42 ] In her cross-examination, Ms. Watch conceded that she had not purchased tickets in the secondary market, saying that her limited understanding of the TradeDesk or Secondary Market Claim was derived from newspaper articles and information provided by her lawyers. [ 43 ] The affidavits submitted by Ms. Tarlton and Mr. Plawsky on behalf of the defendants provided an overview of Ticketmaster Canada’s business in Canada.

Since July 2015, Ticketmaster Canada has provided an integrated marketplace platform where interested individuals can purchase both primary and secondary market tickets. In the primary market, Ticketmaster Canada acts only as a sales agent for its many clients. It is they who determine the sales criteria for the tickets. As a result, Ticketmaster Canada does not own or take into inventory its clients’ tickets. [ 44 ] Respecting the secondary market, Ticketmaster Canada does not resell tickets. Rather, it only provides a

platform for ticketholders and professional resellers to list for resale tickets they had already purchased. And only tickets for which Ticketmaster was the primary market sales agent can be resold on its website – ticketmaster.ca. [ 45 ] Ticketmaster Canada only began to list tickets for resale in the secondary market on its website in mid-2015, and then it was restricted to certain provinces. Secondary market tickets could not be purchased on ticketmaster.ca for events in Québec until 2018.

Secondary market tickets have never been available for events in Manitoba. [ 46 ] All secondary market tickets available on ticketmaster.ca are verified by a barcode which guarantees the purchaser entry into the event. This guarantee means when a ticket is sold on Ticketmaster’s secondary market platform, the original ticket is cancelled and a new one issued to the purchaser. As well, an individual purchasing a ticket on Ticketmaster’s secondary market platform has no way of knowing from whom the ticket is purchased. [ 47 ] In her affidavit, Ms.

Tarlton identified fees charged for primary market purchases on ticketmaster.ca. She described five types of fees that have been charged during the alleged class period. These include: (

a) Order processing fee which offsets the costs of ticket handling, processing and support. This fee is charged once per order, and not per ticket; (

b) Convenience charge which relates to the cost of providing tickets to purchasers, including Ticketmaster Canada’s ticketing information; (

c) Facility charge which is charged by venues in respect of costs associated with maintaining the venue; (

d) Print-at-home fee which offsets the cost of Ticketmaster Canada’s investment made to provide this option to purchases. This fee was eliminated in January 2015; and (

e) Delivery charge which is applied to a purchaser who chooses to have his or tickets delivered by courier. [ 48 ] Ms. Tarlton also described changes to fee disclosure on Ticketmaster Canada’s websites since the start of the alleged class action. These are called a “buy flow”. She averred that there were six different “buy flows” that had been in place over that period of time. [ 49 ] Since 2009, all six buy flows disclosed to the purchaser the full amount of the fees charged, as well as an accurate description of those fees before he or she made a final purchase.

From 2010 to 2015, and again after July 1, 2018, the buy flows disclosed the amount of the fees charged at the beginning of the purchase process. At other times, additional fees and their amounts were disclosed at the billing and payment stages before the last or check-out stage when the consumer purchased the tickets. [ 50 ] On July 1, 2018, the Ticket Sales Act, 2017 , SO 2017, c 33, Sch 3 came into force. Particularly, s. 6 of this statute requires disclosure of the total price of a ticket in the offer.

Since then, the event display page shows the cost of the ticket including all ticket-level fees, as well as a maximum order processing fee. A delivery fee, if any, will be determined later in the buy flow. [ 51 ] In his affidavit, Mr. Plawsky described Ticketmaster Canada’s TradeDesk which was launched in Canada in mid-2015. This tool allows resellers to offer tickets for resale on this platform in a single account through which they can manage its inventory and sale.

TradeDesk, however, has no role whatsoever in the primary market purchase of tickets. [ 52 ] Furthermore, TradeDesk cannot be used to circumvent Ticketmaster Canada’s Terms of Use for purchases in the primary market. Nor does TradeDesk have a function allowing for communication among resellers that use the platform. [ 53 ] TradeDesk enables its users to verify and reissue a large set of tickets at once, often from different sources. Those tickets will appear on TicketMaster Canada’s resale platforms.

TradeDesk offers no other advantages to professional resellers beyond allowing them to hold tickets from multiple sources in a single seller account and simplifying the procedure to verify their resale ticket inventory. V. LAW OF CLASS ACTIONS [ 54 ] To be certified, a proposed class action must satisfy the requirements identified in ss. 6(1) of the CAA . These legislated requirements are similar, if not identical, to those found in class action statutes in other provinces, as well as Rule 334.16 of the Federal Court Rules , SOR/98-106 . Consequently, judicial

interpretations of those various statutes, while not binding in Saskatchewan, are instructive. [ 55 ] Section 6(1) of the CAA reads as follows: Class 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 ofnotifying 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. [56] In Hollick v Toronto (City), 2001 SCC 68, [2001] 3 SCR 158 [Hollick], McLachlin C.J. stated at para. 16 thatthe purpose of a certification hearing is “… decidedly not meant to be a test of the merits of the action”.

Rather, the “… question at thecertification stage is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action”. [57] As the Court of Appeal in Pederson v Saskatchewan (Minister of Social Services, 2016 SKCA 142, [2017] 5WWR 669 [Pederson], admonished at para. 29: [29] ... Judges hearing certification applications must be mindful that the hearing operates as a meaningful screening device andthere should be more than symbolic scrutiny of the evidence. Despite this, the issues are essentially procedural.

A consideration of themerits of the claim is neither necessary nor warranted. The process does not allow for an extensive assessment of the complexities andchallenges a plaintiff may face in establishing its case. It is within these broad boundaries that the task of the hearing judge must beaccomplished. See also: Pro-Sys Consultants Ltd. v Microsoft Corporation, 2013 SCC 57 at paras 100-105, [2013] 3 SCR 477 [Pro-Sys]. [58] When exercising this “meaningful scrutiny”, a court must be mindful of the overarching purposes of a classaction.

Initially identified in Western Canadian Shopping Centres Inc. v Dutton, 2001 SCC 46 at paras 27-29, [2001] 2 SCR 534[Dutton], and reiterated in Hollick at para 15, these overarching purposes are threefold, namely: (

a) First, and foremost, “… class actions serve judicial economy by avoiding unnecessary duplication of fact-finding and legalanalysis …”; (

b) Second, class actions enhance “… access to justice by making economical the prosecution of claims that any one classmember would find too costly to prosecute on his or her own …”; and (

c) Third, “… class actions serve efficiency and justice by ensuring that … wrongdoers modify their behaviour to take fullaccount of the harm …” they have caused or might cause.

Accordingly, it is imperative that courts not take “… an overly restrictive approach …” to a class action statute; rather, they should “…interpret the Act in a way that gives full effect to the benefits foreseen by the drafters”: Hollick, at para 15. [59] While the objective of certification is to determine if, from a procedural perspective, the proposed action is bestprosecuted as a class action; conversely, “… certification seeks to filter out manifestly unfounded and frivolous claims”: Lin v AirbnbInc., Airbnb Canada Inc., Airbnb Ireland Unlimited Company, Airbnb Payments UK Limited, 2019 FC 1563 at para 25 [Lin]. [60] In Pro-Sys, at paras 63, and 99-104, the court set out the requisite legal standards applicable on an application tocertify an action.

Simply put, two separate standards apply to the five certification criteria set out in ss. 6(1): one for the “cause of action”criterion (clause 6(1)(a)), and one for the four other criteria (clauses 6(1)(

b) to (e)). [61] A plaintiff seeking certification bears the burden of demonstrating that each criterion has been met. See:Hoffman v Monsanto Canada Inc., 2007 SKCA 47, at paras 23 and 25, 293 Sask R 89 and G.C. v Merck Canada Inc., 2019 SKQB 42, atpara 32. [62] That said, it is also well established this burden on a plaintiff is not onerous. The test to be applied to the firstcriterion for certification – the pleadings must disclose a cause of action – is similar, if not the same, as when assessing whether to strikeor dismiss a pleading.

See, especially: Pro-Sys, at para 63; Alberta v Elder Advocates of Alberta Society, 2011 SCC 24, at para 20, [2011]2 SCR 261[Elder Advocates]; and Pederson, at para 65. This means each cause of action pleaded must be assessed to see if it is plain andobvious that it discloses no reasonable cause of action and cannot succeed. See, for example: Hollick, at para 25; Elder Advocates, atpara 20, Hunt v Carey Canada Inc., (SCC), [1990] 2 SCR 959, at 980; and Pederson, at para 65. [63] For purposes of this inquiry, material facts must be taken to be true.

Yet, this presumption is displaced if thefacts pled are “… manifestly incapable of being proven”. See: Atlantic Lottery Corp. Inc. v Babstock, 2020 SCC 19, at para 87[Babstock], quoting R v Imperial Tobacco Canada Ltd., 2011 SCC 42 at para 22, [2011] 3 SCR 45. [64] Furthermore, although facts are presumed to be true, they must be pled in support of each cause of action. Baldassertions of conclusion are not allegations of material fact and cannot support a cause of action.

See: Lin, at para 29, and Merchant Law Group v Canada Revenue Agency, 2010 FCA 184 at para 31, 321 DLR (4th) 301. [65] For the four other certification criteria (subclauses 6(1)(

b) to (e)), a plaintiff has the burden of adducingevidence to show “some basis in fact” that they have been demonstrated. See particularly: Hollick, at para 25, and Pro-Sys, at para 99.See also: Pederson, at paras 28-29, and Kane v FCA US LLC, 2022 SKQB 69 at paras 92-93. [66] This threshold is also low given a court’s inability to “engage in the finely calibrated assessments of evidentiary

weight” at the certification stage: AIC Limited v Fischer , 2013 SCC 69 at para 40 , [2013] 3 SCR 949 [ Fischer ] . The “some basis in fact” standard means that for the last four certification criteria, an evidentiary foundation is needed to support certification, The use of the word “some” implies that the evidentiary record need not be exhaustive, and a court must refrain from assessing the sufficiency of evidence or resolving conflicts in the evidence.

See: Fischer , at para 41 , citing McCracken v Canadian National Railway Co. , 2012 ONCA 445 , at paras 75-76 , 111 OR (3d) 745 , and Lin , at para 30 . [ 67 ] Finally, it is settled that the “some basis in fact” standard falls below the civil standard of proof, i.e. on a balance of probabilities. See: Pro-Sys , at para 105 . Since at the certification stage a court does not engage in a robust analysis of the merits of the claims advanced on the application, a successful certification order does not presage, in any way, the result of a subsequent common issues trial.

See: Pro-Sys , at para 105 , and Lin , at para 31 . VI. ANALYSIS [ 68 ] Ms. Watch’s proposed action has its counterparts in two other provinces. [ 69 ] In Gomel v Live Nation Entertainment Inc. , 2021 BCSC 699 [ Gomel ] , Tammen J. certified part of a larger action challenging Tickemaster Canada’s primary market of ticket sales. Gomel is highly relevant to this application as it addresses many of the issues advanced by Ms. Watch on this certification application.

Currently, Gomel is on appeal to the British Columbia Court of Appeal (CA 47479, Vancouver Registry), with a scheduled hearing date of February 3, 2023. [ 70 ] A similar action is underway in Ontario. Styled Thompson-Marcial v Ticketmaster LLC (CV-18-00605906- 00CP), it is scheduled for a certification application in April 2023. [ 71 ] In Québec , McPhee v Live Nation Entertainment Inc. , 2019 QCCS 3820 which concerns a proposed class action similar to the TradeDesk or Secondary Market Claim presented in this application, has been stayed pending the disposition of Ms.

Watch’s application to certify her proposed class action. A. Section 6(1)(a) – Reasonable Cause of Action [ 72 ] The first criterion for certification is that the proposed plaintiff’s pleading must disclose a cause of action. 1. Identifying the Causes of Action Pled [ 73 ] Respecting the Representations or Primary Market Claim, Ms. Watch’s pleading advances five potential causes of action. These causes of action are: (

a) Breaches of ss. 52 and 54 of the Competition Act ; (

b) Breach of the CPBPA , and consumer protection legislation in other provincial jurisdictions; (

c) Breach of contract; (

d) Unjust enrichment, and (

e) Waiver of tort; [ 74 ] Respecting the TradeDesk or Secondary Market Claim, Ms. Watch’s pleading advances five potential causes of action, some of which are distinct from the Representations or Primary Market Claim, and some of which overlap. The causes of action which are applicable only to the TradeDesk or Secondary Market Claim are: (

a) Breaches of s. 45 of the Competition Act ; (

b) Tort of civil conspiracy; (

c) Tort of interference with economic interests; and (

d) Breach of the TSA . [ 75 ] The causes of action which overlap with the Representations or Primary Market Claim are: (

a) Breach of contract; (

b) Unjust enrichment; and (

c) Waiver of tort; 2. Analysis of Causes of Action [ 76 ] I will address these various causes of action in the following order: (1) the Competition Act ; (2) provincial consumer protection legislation; (3) breach of the TSA ; (4) waiver of tort; (5) unjust enrichment; and (6) tort of civil conspiracy. [ 77 ] As noted, in a proposed class proceeding, in determining whether the pleading discloses a cause of action, no evidence is admissible, and the material facts pleaded are accepted as true, unless patently ridiculous or manifestly incapable of proof.

See: Babstock , at para 87 . The pleading is to be read generously. It will prove to be unsatisfactory if it is plain and obvious a claim cannot succeed. Only then will it be struck out. See: Elder Advocates , at para 4 . 2.1 The Competition Act [ 78 ] In her Second Amended Statement of Claim, the plaintiff invokes ss. 45 , 52 , 54 , 74.01(1) (

a) and 74.05 of the Competition Act in relation to the Representations or Primary Market Claim. However, I will begin my analysis of these various claims with a consideration of s. 36 of the Competition Act . 2.1.1

Section 36 of the Competition Act [ 79 ]

Section 36 of the Competition Act confers a right of private action to any person who has suffered loss or damage as a result of conduct breaching one or more of the criminal provisions created by that statute. It is the provision which creates a plaintiff’s cause of action. To succeed, a plaintiff must prove that: (

i) the defendant’s alleged misconduct satisfies all constituent elements of the underlying criminal offence; (ii) they suffered loss or damage; and (iii) there is a causal link between the loss or damage resulting from the violation of the criminal prohibition. See , for example: Lin , at para 69 , and Jensen v Samsung Electronics Co. Ltd. , 2021 FC 1185 , at paras 91 and 94 [ Jensen ] . [ 80 ] In Jensen , the court helpfully elaborated on the operation of

section 36 in the class action context as follows at paras. 92-93: [92] When a breach of a criminal provision is alleged, recourse under

section 36 may be commenced without there having been a criminal conviction, or even an investigation by the competition authorities into the impugned conduct. However, a plaintiff still has the burden of proving the elements of the prohibited criminal conduct. The right of action in

section 36 has a relatively short limitation period. An action must be brought within two years from the later of the day on which the conduct was engaged in or the day on which any criminal proceedings are disposed of. However, the discoverability rule applies to

section 36 claims ( Godfrey [ Pioneer Corporation v Godfrey , 2019 SCC 42 , [2019] 3 SCR 295 ] at paras 31-50 ). It means that the start of the limitation period is postponed until the time that the plaintiff knew or ought to have known of the anti-competitive conduct, though the discoverability rule does not extend to the two-year limitation period following the disposition of a criminal proceeding. [93] To establish a claim under paragraph 36(1)(a), a plaintiff must plead that the defendants breached a provision of

Part VI of the Act (which addresses “Offences in Relation to Competition” ) and that the plaintiff suffered actual loss or damage as a result of the impugned criminal conduct. The right to pursue an action in damages and to seek recovery of certain investigation costs is subject to some important limits, including a limit to pursuing compensatory damages (i.e., no punitive damages or injunctive relief). 2.1.2 Section 45(1) of the Competition Act [ 81 ] Ms. Watch submits that a cause of action pursuant to s. 45(1) of the Competition Act is sustainable in this case.

She advances this claim only in relation to the TradeDesk or Secondary Market Claim. She relies upon both the current text of s. 45 which came into force on March 12, 2010, and its predecessor section. [ 82 ] In its relevant parts, s. 45 currently reads as follows: Conspiracies, agreements or arrangements between competitors 45

(1) Every person commits an offence who, with a competitor of that person with respect to a product, conspires, agrees or arranges (

a) to fix, maintain, increase or control the price for the supply of the product; (

b) to allocate sales, territories, customers or markets for the production or supply of the product; or (

c) to fix, maintain, control, prevent, lessen or eliminate the production or supply of the product. Penalty

(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable on conviction to imprisonment for a term not exceeding 14 years or to a fine not exceeding $25 million, or to both. Evidence of conspiracy, agreement or arrangement

(3) In a prosecution under subsection (1), the court may infer the existence of a conspiracy, agreement or arrangement from circumstantial evidence, with or without direct evidence of communication between or among the alleged parties to it, but, for greater certainty, the conspiracy, agreement or arrangement must be proved beyond a reasonable doubt. … [ 83 ] Prior to March 12, 2010, however, s. 45 read as follows: 45

(1) Every one who conspires, combines, agrees or arranges with another person (

a) to limit unduly the facilities for transporting, producing, manufacturing, supplying, storing or dealing in any product, (

b) to prevent, limit or lessen, unduly, the manufacture or production of a product or to enhance unreasonably the price thereof,

(

c) to prevent or lessen, unduly, competition in the production, manufacture, purchase, barter, sale, storage, rental, transportation or supply of a product, or in the price of insurance on persons or property, or (

d) to otherwise restrain or injure competition unduly, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or to a fine not exceeding ten million dollars or to both. [ 84 ] The principal difference between these two provisions is that now s. 45 creates an offence to conspire with competitors and no longer requires an analysis of whether the conspiracy had an undue effect on competition.

See: Jensen , at paras 95- 97 , and Watson v Bank of America Corporation , 2014 BCSC 532 , at para 90 [ Watson ] . [ 85 ] The defendants assert that the s. 45 claim is doomed to fail because the provision requires an agreement between competitors, and no competitor of Ticketmaster has been identified in the Second Amended Statement of Claim. They acknowledge that at paragraph 71 of her pleading, Ms.

Watch asserts that co-conspirators “… include scalpers and ticket brokers who range in size and organization from individuals to entities that buy from hundreds, to thousands, to millions of tickets from the Defendants per year for various events”. Apart from its lack of specificity the defendants maintain that the existence of any co-conspirators is not a material fact but a bare allegation and, for this reason, cannot be assumed to be true. [ 86 ] The defendants further assert that Ms.

Watch should not be permitted baldly to allege a broadly based conspiracy which apparently has continued for more than a decade without providing even a general description of any of the alleged co- conspirators. They submit counsel for Ms. Watch is engaging in a classic “fishing expedition”. If Ms. Watch does not know the basic facts necessary to support this cause of action, it is inappropriate for her to advance such a claim. [ 87 ] In support of this submission, they invoke Mancinelli v Royal Bank of Canada , 2020 ONSC 1646 [ Mancinelli ] .

There, when considering a claim advanced under s. 45 of the Competition Act , Perell J. stated at paras. 142-143 as follows: [142] In a conspiracy pleading, it is necessary to set out discretely the particular acts of each co-conspirator so that each defendant can know what he or she is alleged to have done as part of the conspiracy. A recitation of a series of events coupled with an assertion that they were intended to injure [is] insufficient, and it is not appropriate to lump some or all of the defendants together into a general allegation that they conspired to injure the plaintiff.

If the plaintiff does not, at the time of pleading have knowledge of the facts necessary to support the cause of action, then it is inappropriate to make the allegations in the statement of claim. [143] A pleading of conspiracy should specify: (

a) who the parties are and their relationship with one another; (

b) the agreement between the defendants to conspire and its purpose or object; (c) (

d) the overt acts that are alleged to have been done by each of the conspirators in furtherance of the conspiracy and these are to [ sic ] described with clarity and precision; and (

e) the damages occasioned to the plaintiff as a result of the conspiracy. [ 88 ] Counsel for Ms. Watch responds by asserting that it is not necessary to prove all elements of a statutory or common law conspiracy claim because of the presence of ss. 45(3) which authorizes the court to infer those elements from circumstantial evidence. It should be noted, however, that this evidentiary provision appears to be limited by its opening language to “a prosecution” under ss. 45(1) .

It is an open question whether this provision is applicable in the context of a civil action. [ 89 ] I agree with counsel for the defendants that the pleading of this cause of action is inadequate. It lacks the requisite specificity identified at para. 143 of Mancinelli . [ 90 ] Yet, even accepting the broad description of “Co-conspirators” set out in the pleading as true, it still does not make out a viable claim of a breach of s. 45. As a ticketing marketplace in the secondary market, Ticketmaster Canada does not resell tickets.

Rather, it provides a platform on which individuals and professional resellers may list for resale tickets they previously acquired. See: Plawsky Affidavit, at paragraph 3. [ 91 ] More to the point, only tickets for which Ticketmaster was the primary market sales agent can be resold on the ticketmaster.ca marketplace. See: Tarlton Affidavit, at paragraph 19. [ 92 ] Accordingly, for these reasons I am persuaded that it is plain and obvious the cause of action founded upon s. 45 of the Competition Act is doomed to fail and must be struck. 2.1.3 Sections 46 and 47 of the Competition Act [ 93 ] Ms.

Watch adverts to s. 46 and 47 of the Competition Act only in passing, for example at paragraphs 113, 114, 115, and

Section 46 is the “foreign directive” provision which makes it an offence for a company carrying on business in Canada to implement a directive intended to give effect to an agreement entered into outside of Canada.

Section 47 makes it an offence to rig bids or tenders in response to a call or request for bids. [ 94 ] Respecting claims based on these two statutory provisions, there are no material facts pled about the existence of any extra-territorial agreement or that Ticketmaster responded to any calls or requests for bids. [ 95 ] Tellingly, as well, counsel for Ms. Watch made no formal submissions on the application of these two statutory provisions. [ 96 ] Accordingly, for these reasons, I am persuaded that it is plain and obvious the cause of action founded upon ss. 46 and 47 of the Competition Act is doomed to fail and must be struck.

2.1.4

Section 52 of the Competition Act [97] Section 52(1) of the Competition Act is drafted as a criminal provision and only applies where a personknowingly or recklessly makes a false or misleading representation. There is no general duty to disclose. See, for example: Arora v Whirlpool Canada LP, 2013 ONCA 657, at para 50, 370 DLR (4th) 59. While the failure to disclose a material fact can amount to a falseor misleading representation under provincial consumer protection such as the CPBPA, it does not amount to a breach of s. 52(1).

See:Rebuck v Ford Motor Company, 2022 ONSC 2396, at para 43 [Rebuck]. [98] Section 36(1) allows any person who has suffered loss or damage “as a result” of a breach of s. 52(1) to sue for,and recover, damages for such a breach. Even though s. 52(1) is a criminal provision, if damages are being sought in a civil proceedingunder s. 36(1), a plaintiff only has to establish a breach of s. 52(1) on a balance of probabilities. See: Rebuck, at para 44. [99] A claim under s. 52(1) of the Competition Act was advanced in Gomel. Justice Tammen did not certify it.

Herelied principally on Wakelam v Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc., 2014 BCCA 36, [2014] 5 WWR 7 [Wakelam] which in turn had approved of the statement of law found in Singer v Schering-Plough Canada Inc., 2010 ONSC 42, 87 CPC (6th) 276[Singer].

In Singer, Strathy J. (as he then was) held that to succeed in a s. 52(1) claim, a plaintiff must show “… a causal connectionbetween the breach (the materially false or misleading representation to the public) and the damages suffered by the plaintiff …”: Singer,at para 107. [100] Refusing to certify this claim in Gomel, Tammen J. found the pleading to be “woefully insufficient to support theclaim for damages pursuant to ss. 36 and 52 of the Competition Act”: Gomel, at para 96.

The flaw was that no material facts were pled insupport of any reliance by the putative plaintiff on false or misleading representation made by Ticketmaster. He inferred “… as did theCourt of Appeal in Wakelam, that the failure to plead facts in support of the causal connection is indicative of an inability to do so (para.92)”: Gomel, at para 97. [101] Here Ms. Watch’s Second Amended Statement of Claim suffers the same deficiency. At paragraph 111, sheasserts: 111.

The Defendants’ conduct, including but not limited to Price Representations, Drip Pricing, and collection of the Overchargeviolates ss. 52 and 54 of the Competition Act and that the conduct caused damages to the Plaintiff and the Class. [102] Ms. Watch’s pleading is even more barren than the one struck out in Gomel. There is no factual statement, letalone one of material facts, pled that Ms. Watch relied upon representations made by Ticketmaster.

Rather, she simply cites s. 52, assertsit has been breached by the defendants, and this caused damages to her and other members of the class. [103] Accordingly, I am persuaded based upon the reasoning in Gomel, and the bald allegations contained in thepleading that it is plain and obvious a claim based upon s. 52(1) of the Competition Act is doomed to fail and must be struck. 2.1.5

Section 54 of the Competition Act [104] Section 54(1) creates the offence of “double ticketing”.

This subsection lists three modes in which a price can beexpressed for the purpose of making out a double-ticketing offence, namely: “on the product, its wrapper or container (ss. 54(1)(a)); “onanything attached to, inserted in or accompanying the product, its wrapper or container or anything on which the product is mounted fordisplay or sale” (ss. 54(1)(b)); or “on any in-store or other point-of-purchase display or advertisement” (ss.54(1)(c)). [105] This prohibition against “double-ticketing” first came into being in 1975, as s. 18 of the Combines InvestigationAct, SC 1974-1975-1976, c 76 amended s. 36.2 of the Combines Investigation Act, RSC 1970, c C-23.

The text of s. 54 is identical to itsprecursor, s. 36.2. See: Lin, at para 36. Plainly, this

section was drafted long before the emergence and predominance of onlinecommerce in contemporary society. See: Trotman v WestJet Airlines Ltd., 2022 BCCA 22, at para 47 [Trotman]. [106] In Lin, at para 39, Gascon J. noted that despite the fact the “double-ticketing” provision has existed for almost ahalf-century, there is scant case law interpreting s. 54. He went on to hold that despite a paucity of judicial authority “when a case raisesnovel or difficult questions of statutory

interpretation, such questions should not be decided at the certification stage”: Lin, at para 56. [107] The defendants state that s. 54 cannot apply to ticket sales, citing Apotex Inc. v Hoffman La-Roche Limited (2000), (ON CA), 195 DLR (4th) 244 (Ont CA), at para 20.

There the Court stated, “… The offence in s. 54 isdirected at the practice of selling goods at the higher of two different prices that have been placed on the product or in anything attachedto or accompanying the product…” They assert that this description of the offence does not include ticket sales. [108] Of note, Gascon J. in Lin pointed to a case law which also bears some relevance to this application: The Consumers’ Association of Canada v Coca-Cola Bottling Company, 2006 BCSC 863, 56 BCLR (4th) 336 [Coca-Cola], aff’d 2007 BCCA 356, 72 BCLR (4th) 243.

There recycling fees for bottled drinks were excluded in the price displayed on the shelf for theseproducts but were added at the cash register and charged to the consumer in the final price. The court found that this did notconstitute “double ticketing” and did not breach s. 54 (Coca-Cola, at paras 69, 93). [109] I acknowledge that courts are to read pleadings generously, and “… err on the side of permitting a novel butarguable claim to proceed to trial …”: Trotman, at para 44, quoting Lin, at para 59.

In order to do this, however, the claim must beadequately pled. [110] In the Second Amended Statement of Claim only one paragraph – paragraph 111 reproduced in the previoussection – simply alleges that the price representations, drip pricing and the collection of overcharges violate s. 54 of the Competition Actand caused damage to Ms. Watch and other class members. No particular facts, indeed, no material facts, to support this assertion are tobe found in the pleading. It is simply a bald allegation, nothing more.

[ 111 ] Accordingly, for these reasons, I am persuaded it is plain and obvious a claim based upon s. 54 of the Competition Act is doomed to fail and paragraph 111 must be struck. 2.1.6 Sections 74.01 and 74.05 of the Competition Act [ 112 ] These two provisions deal with misrepresentations to the public ( ss. 74.01(1) (a)), and sales above the advertised price ( s. 74.05 ). They are found in

Part VII.1 of the Competition Act which only applies to applications commenced by the Commissioner of Competition by virtue of s. 74.1 . [ 113 ] Additionally, these sections also fall outside the scope of s. 36 of the Competition Act . Clause 36(1) (

a) creates a civil cause of action for, “Any person who has suffered loss or damage as a result of (

a) conduct that is contrary to any provision of

Part VI …” only. This would not include

Part VII.1. [ 114 ] Accordingly, for these reasons I am persuaded that it is plain and obvious the causes of action founded upon ss. 74.01 and 74.05 of the Competition Act are doomed to fail and must be struck. 2.1.7 Conclusions on Competition Act Claims [ 115 ] I have concluded that none of the claims under the Competition Act can be certified because even based on a generous reading of the Second Amended Statement of Claim it is plain and obvious they are doomed to fail. 2.2 Provincial Consumer Protection Legislation [ 116 ] Breaches of various provincial consumer protection legislation are pled in Ms.

Watch’s Second Amended Statement of Claim. At paragraph 135, she pleads that the defendants engaged in conduct such as “… the Price Representations, Drip Pricing, and the collection of the Overcharge…”.

She alleges these constitute “… Unfair Trade Practices…” which caused damage to her and other members of the proposed class. [ 117 ] At paragraph 136, she lists the existing consumer protection legislation of nine provinces, except for Québec, and alleges the unfair trade practices she identified in paragraph 135 amount to breaches of these various provincial statutes. [ 118 ] Of especial relevance here is the CPBPA , the pertinent Saskatchewan statute. 2.2.1 Law [ 119 ] The CPBPA ’s antecedent was first enacted in 1977 as The Consumer Products Warranties Act, 1977 , SS 1976- 77, c 15 .

It is remedial legislation which Abella J. described in Prebushewski v Dodge City Auto

(1984) Ltd. , 2005 SCC 28 at para 33 , [2005] 1 SCR 649 as follows: 3 3

Part III of the Act, in which s. 65 is found, was originally enacted in 1977 as The Consumer Products Warranties Act, 1977 , S.S. 1976-77, c. 15 . It was part of an emerging legislative pattern in North America designed to equitably reconfigure the imbalance in bargaining power between consumers and those who manufacture and sell products.

In order to inform consumers and protect them from unsafe products and fraudulent or deceptive practices, legislation was introduced to rectify consumer vulnerability resulting from such common law principles as caveat emptor . [Emphasis added] [ 120 ] To fulfil this objective, the protections to consumers afforded by legislation like the CPBPA must be given a generous and liberal

interpretation. See, for example: Seidel v TELUS Communications Inc. , 2011 SCC 15 at para 37 , [2011] 1 SCR 531 ; Schroeder v DJO Canada Inc. , 2010 SKQB 125 at para 41 , [2010] 10 WWR 324 ; and Tchozewski v Lamontagne , 2014 SKQB 71 at para 46 , [2014] 7 WWR 397 . [ 121 ] Gomel is most relevant to this aspect of Ms. Watch’s application for certification. There, Tammen J. certified causes of action respecting alleged breaches of certain provisions of the Business Practices and Consumer Protection Act , SBC 2004, c 2 [ BPCPA ], the British Columbia statute complementary to the CPBPA .

The following chart identifies the sections in the BPCPA respecting which Tammen J. certified a cause of action, and equivalent sections contained in the CPBPA . BPCPA CPBPA

ss. 4 and 5 : Deceptive acts or practices respecting a consumer transaction defined in ss. 4(1) as “(

a) an oral, written, visual, deceptive or other representation by a supplier or (

b) any conduct by a supplier that has the capability and tendency or effect of deceiving or misleading a consumer or guarantor”. Section 5(1) creates the prohibition against engaging in a deceptive act or practice in respect of a consumer transaction. Division 2 – Unfair Practices: ss. 6-9: These sections pertain to unfair practices which are defined in s.

Section 7 identifies circumstances which qualify as “unfair practices” under the CPBPA , a number of clauses of which may be relevant in this case, especially: ss. 7(1) (j), and (l).

Section 8 creates prohibitions against unfair practices.

Section 9 specifically addresses circumstances related to unfair practices. For example, ss. 9(1) states an unfair practice may occur “… before, during or after a transaction involving goods or services or whether or not a transaction involving goods or services takes place”, and ss. 9(2) states that an “unfair practice may consist of a single act or omission”. ss. 8 and 9 :

Section 8 deals with unconscionable acts or practices. Subsection 8(1) stipulates that “An unconscionable act or practice by a supplier may occur before, during or after the consumer transaction”. Subsection 8(3) identified certain circumstances which a court may consider when determining if an unconscionable act or practice has occurred. Division 2 – Unfair Practices: ss. 6-9: The CPBPA does not contain a separate provision addressing unconscionable acts or practices. However, there are various subsections in s. 7 which could encompass claims of unconscionability, for example: ss. 7(j), (q), and (s). s. 171 : This

section authorizes an award of monetary damages to any person who has “… suffered damage or loss due to a contravention …” of the BPCPA . Subsections 171(1) (

a) to (

e) identified persons who are not entitled to seek a damages award. Damages - ss. 91 and 93: These are the provisions of the CPBPA most similar to s. 171 of the BPCPA . [ 122 ] It should be noted that at least in respect of the unconscionability claim advanced in Gomel , Tammen J. harboured reservations about whether it could be established.

However, in keeping with the low standard of establishing a cause of action, he stated at para. 74 that he “… would not at this juncture stop the plaintiffs in their tracks, and decline to permit them to move this litigation forward …”. 2.2.2 Discussion [ 123 ] The defendants contend that this claim does not raise a viable cause of action for purposes of clause 6(1)(a). They assert that the pleading simply alleges “all categories of monetary relief” to which Ms. Watch and other class members may seek without pleading any particulars. As well, because no specific

section of the CPBPA is pled, or of any of the other consumer protection statutes identified by Ms. Watch, the defendants assert that effectively this is nothing more than a “bare bones” pleading, if that, and should be struck.

See , for example: Gomel , at para 66 referring to Cantlie v Canadian Heating Products Inc. , 2017 BCSC 286 , at para 249 . [ 124 ] The plaintiff points to various paragraphs in the Second Amended Statement of Claim which plead factual allegations relating to her claim brought pursuant to provincial consumer protection legislation at least as it relates to the Representations or Primary Market Claim. [ 125 ] I acknowledge that the factual pleadings in Second Amended Statement of Claim particularly at paragraphs 100- 104 relating to this cause of action are thin; however, it is sufficient, if only just, to ground a claim under provincial consumer protection legislation respecting the Representations or Primary Market Claim.

For the reasons given by Tammen J. in Gomel , I am satisfied that it is not doomed to fail and should at this early stage of the litigation be permitted to proceed. [ 126 ] It will be necessary for the plaintiff to amend her pleading to identify with precision the provisions of the CPBPA and other provincial consumer protection statutes upon which they are relying. I grant leave for her to amend her pleadings in this regard pursuant to Rule 7-9(2)(

a) of The Queen’s Bench Rules , and ss. 7(1) of the CAA . [ 127 ] However, I am not satisfied that it is sufficient to ground the TradeDesk or Secondary Market Claim. Consequently, I do not certify claims grounded in provincial consumer protection statutes identified by the plaintiff in her pleadings on that aspect of this application. 2.3 TSA Claim [ 128 ] A breach of the TSA is pled at paragraph 96 of the Second Amended Statement of Claim. It is alleged only in relation to the TradeDesk or Secondary Market claim. [ 129 ] Ms. Watch firmly grounds her claim on s. 9 of the TSA .

Enacted in 2010, the TSA has counterparts in other provinces, notably the Ticket Speculation Act , RSO 1990, c T.7 (since rep), and The Amusements Act , CCSM c A70 in Manitoba. Only

the Ontario legislation appears to have been judicially considered, however. See, for example: Krajweski v TNow Entertainment Group,Inc., 2013 ONSC 7502. [130] Ms. Watch submits at paragraphs 191 and 192 of her brief of law that because the TSA has not been judiciallyconsidered in this province, it is a novel claim and should be certified principally for this reason. [131] The defendants demur. Apart from submitting that Ms. Watch failed to plead any alleged misrepresentations ofthe TSA, they urge that assessing the suitability of this claim for certification involves an exercise in statutory

interpretation. [132]

Section 9 of the TSA creates a cause of action for a consumer who has suffered a loss resulting from acontravention of ss. 5, 6, or 7 of the legislation. The defendants assert, however, that none of those provisions apply in this case. [133]

Section 5 restricts a primary seller from allowing any references to or links to secondary sales in the primaryseller’s website or promotional materials. The Ticket Sales Regulations, RRS c T-13.1, Reg 1, s 3(2) [TS Regulations], however, providesthat s. 5 of the TSA does not apply to a “ticket exchange” operated by the primary seller of tickets for the event. Since the Ticketmastersite is not active if a Ticketmaster’s client does not wish for it to be active, it meets the definition of “ticket exchange” set out in the TSRegulations, and s. 5 of the TSA does not apply to it. [134]

Section 6 of the TSA imposes certain restrictions on sellers in the primary market. With one exception, Ms. Watchhas not alleged that any conduct by the defendants contravenes this section. However, at paragraph 96(a)(v), she alleges that contrary toss. 6(1) of the TSA the defendants and unnamed co-conspirators directed, permitted or facilitated the sale, advertisement or listing forsale of event tickets as “resale tickets” within 48 hours of the tickets being made available for sale. Yet, this is a bald allegation only,with no material facts pled in support. [135]

Section 7 of the TSA restricts the use of ticket “bots”. (Ticket “bots” are computer programs that automate theprocess of online ticket buying.) Here again, Ms. Watch does not allege that Ticketmaster used or sold software that would circumventany security or access control measures.

Indeed, she pleads the opposite at paragraph 79 of her Second Amended Statement of Claim.She refers to claims commenced by Ticketmaster in the United States targeting entities which used bots on its platform to circumventTicketmaster’s own security measures and access control systems. [136] Furthermore, TradeDesk does not assist its users to purchase tickets. Indeed, Ticketmaster’s terms of userespecting primary sales site requires a purchaser agree not to use automated software to search for, reserve and purchase tickets.

Itpreserves Ticketmaster’s right to investigate any breach by a user, and when necessary to take action, including cancellation of a useraccount. See also: Gomel, at para 31. [137] Accordingly, for these reasons I conclude that Ms. Watch’s claim invoking the TSA is doomed to fail and theparagraphs alleging such a claim, especially paragraph 96 of the Second Amended Statement of Claim, must be struck. 2.4 Waiver of Tort [138] Waiver of tort is expressly pled in Ms.

Watch’s Second Amended Statement of Claim, particularly at paragraphs150-154. [139] At the time these pleadings were framed, the law respecting whether waiver of tort was a viable cause of actionwas uncertain. However, since that time the Supreme Court issued Babstock. There Brown J. for the majority stated that waiver of tort isnot “… an independent cause of action …”, and it “… should, therefore, be abandoned …”: Babstock, at paras 27, and 30. [140] As Ms. Watch has pled waiver of tort as an independent cause of action, it is plain and obvious that it is doomedto fail.

Accordingly, the paragraphs alleging waiver of tort must be struck. See also: Gomel, at para 115. 2.5 Unjust Enrichment 2.5.1 Law [141] The equitable principle of unjust enrichment is pled by Ms.

Watch, particularly at paragraphs 144-147 of theSecond Amended Statement of Claim. [142] The elements of a claim of unjust enrichment were summarized in Garland v Consumers’ Gas Co., 2004 SCC 25,at para 30, [2004] 1 SCR 629, and clarified somewhat in Kerr v Baranow, 2011 SCC 10, [2011] 1 SCR 269 [Kerr]. [143] As identified by Cromwell J. in Kerr, the unjust enrichment analysis is comprised of three elements: (1)enrichment, i.e. has the defendant been enriched by the plaintiff; (2) corresponding deprivation, i.e. has the plaintiff suffered acorresponding deprivation; and (3) no juristic reason, i.e. the enrichment and corresponding deprivation occurred without a juristicreason.

Respecting the third element, Cromwell J. stated that no juristic reason for the enrichment and corresponding deprivation means“… that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention“unjust” in the circumstances of the case …”.

See: Kerr, at paras 36, and 40. [144] Justice Cromwell stated at para. 37 of Kerr that courts have “… taken a straightforward economic approach to thefirst two elements – enrichment and corresponding deprivation …” However, the third element of the unjust enrichment analysis “…provides for due consideration of the autonomy of the parties, including factors such as ‘the legitimate expectation of the parties, [and]the right of the parties to order their affairs by contract’…” See: Kerr, at para 41, quoting Peel (Regional Municipality) v Canada, (SCC), [1992] 3 SCR 762, at 803. 2.5.2 Analysis

[145] In Gomel, unjust enrichment was advanced as a cause of action on a factual context very similar to thisapplication. After setting out the requisite elements the law requires to be demonstrated to establish such a claim, Tammen J. stated atpara. 111 that no material facts were pled by the plaintiff to support the first two elements of an unjust enrichment claim, namely theenrichment and detriment elements.

He invoked Côté J.’s statement in Moore v Sweet, 2018 SCC 52 at para 41, [2018] 3 SCR 303, thatthese elements are “… ‘essentially two sides of the same coin’…”, quoting Peter v Beblow, (SCC), [1993] 1 SCR 980at 1012. [146] Justice Tammen seemed to accept that “… the collection of multiple fees for the sale and resale of the same ticket…” might qualify as “… the alleged enrichment …” and satisfy the first stage of the unjust enrichment analysis. See: Gomel, at para111. [147] However, he determined that the plaintiff’s pleading failed to set out material facts demonstrating the remainingtwo elements.

He stated at paras. 112-113 as follows: [112] However, it cannot be said that any deprivation “corresponds” with the alleged enrichment to the defendants. The deprivationseems to be the inflated prices paid by the plaintiffs for tickets in the resale market. Again, the excess price paid for the ticket over theface price went to resellers — not Ticketmaster. [113] There is no suggestion that any plaintiff paid multiple service fees for a ticket. In this case, the additional service fees did notpass from the plaintiffs to the defendants.

Thus, if the collection of multiple fees for sale of the same ticket is actionable, it could onlybe pursuant to statute. This claim, if it can be made out at all, fits much more comfortably within the BPCPA claim than at common law. [148] The defendants submit that Ms. Watch’s pleading of unjust enrichment should be struck essentially for thereasons given by Tammen J. in Gomel. She has failed to set out any material facts supporting any of three required elements. Particularly,they assert that there is no pleading about the absence of a juristic reason for any deprivation. [149] It is true that Ms.

Watch’s pleadings respecting this claim are very general, to put it kindly. For example,paragraph 146 alleges the defendants and co-conspirators have been “… unjustly enriched by their receipt of revenues at supra-competitive prices from the sale of resale event tickets in breach of the Competition Act”. Paragraph 147 repeats the same allegation,except it asserts a breach of the TSA. [150] Apart from these bald allegations, no material facts are pled in support. This is not surprising because Ms.

Watchnever purchased resale tickets from the Secondary Market. [151] The defendants submit that the pleading is also deficient because it fails to plead the absence of a juristic reasonfor any deprivation. It is true for the pleading itself makes no mention of a juristic reason; however, in Ms. Watch’s written brief of law,she asserts at paragraph 153(

c) that any contract she may have entered into with the defendants is not a juristic reason. She furthersubmits at paragraph 163 of her written brief that restitution lies for enrichments obtained through a breach of a federal statute, such asthe Competition Act. [152] Two comments may be made respecting these arguments.

First, the TSA is not a federal statute, and as this claimhas been struck, an unjust enrichment claim based on an alleged breach of this statute similarly should be struck. [153] Second, an unjust enrichment claim would necessarily complicate the class proceeding and make itunmanageable with only minimal contribution to access to justice, behaviour modification, and judicial economy – the avowed goals for class actions.

See especially: Shan v LG Chem Ltd., 2015 ONSC 6148 at para 234, 390 DLR (4th) 87. [154] Accordingly, for these reasons I concluded it is plain and obvious the unjust enrichment claim advanced by Ms.Watch is doomed to fail, and the paragraphs alleging this claim must be struck. See also: Gomel, at para 115. 2.6 Tort of Civil Conspiracy 2.6.1 Law [155] To begin, there are two branches of conspiracy actionable under Canadian tort law, namely: (

a) conspiracy toinjure or predominant purpose; and (

b) conspiracy to use unlawful means. See: Saskatchewan Party v Progressive Conservative Party ofSaskatchewan, 2008 SKCA 155 at para 12 [Saskatchewan Party]; R.L.T.V. Investments Inc. v Saskatchewan Telecommunications, 2009SKCA 83 at para 44, [2009] 9 WWR 15; and Reisinger v J.C. Akin Architect Ltd., 2017 SKCA 11 at para 21, [2017] 8 WWR532 [Reisinger]. [156] A conspiracy to injure arises when individuals combine for the predominant purpose of causing injury to theplaintiff.

A subjective test is utilized to determine the predominant purpose of the combination, and its focus is on what was thedefendants’ purpose or objective in acting in concert. Not all members of the combination need to share the exact same objective, onlythat each has his or her own legitimate trade or business interests to gain.

See: Saskatchewan Party at para 13. [157] The elements of the tort of conspiracy to injure are four-fold, namely: (1) an agreement between two or morepersons; (2) the predominant purpose of the combination is to injure the plaintiff (using a subjective test); (3) each person performs overtacts (lawful or unlawful) in pursuance of the conspiracy; and (4) the plaintiff must suffer damage: Saskatchewan Party atpara 14 and Reisinger at para 22. [158] A conspiracy to use unlawful means and consequently injure the plaintiff is often pled when the plaintiff isunable to establish the dominant purpose of the combination was to injure the plaintiff.

See: Saskatchewan Party at para 15. [159] The elements of the tort of conspiracy to use unlawful means are five-fold: (1) an agreement between two or more

persons to act unlawfully; (2) each person performs overt acts in pursuance of the conspiracy; (3) the impugned acts are unlawful in themselves; (4) the persons involved in the combination are aware that the impugned acts will harm or likely will harm the plaintiff; and (5) the plaintiff suffers damages as a result. See: Saskatchewan Party at para 15 and Reisinger at para 22 . [ 160 ] In view of the misconduct the tort of conspiracy seeks to enjoin, there are established pleading requirements that must be satisfied in order to advance this cause of action. The pre-requisites for a pleading of civil conspiracy are: (

a) who the parties are and their relationship with one another; (

b) the agreement between the defendants to conspire and its purpose or object; (

c) the overt acts that are alleged to have been done by each of the alleged conspirators in furtherance of the conspiracy; and (

d) the damages suffered by the plaintiff resulting from the conspiracy. See: Mancinelli , at para 154 . [ 161 ] Additionally, when alleging a conspiracy, a plaintiff in their pleading must discretely set out the particular acts of each co-conspirator to enable each defendant to know and identify what he or she is alleged to have done in furtherance of the conspiracy. This requires there be some clarity about these impugned actions which can be found on the face of the statement of defence. See: Mancinelli , at para 142 . 2.6.2 Analysis [ 162 ] In his certification brief, counsel for Ms.

Watch asserts that paragraphs 119, 121-125, and 156-158 of the Second Amended Statement of Claim extensively plead the essential elements of this tort in relation to the TradeDesk or Secondary Market Claim only. He points particularly to the pleading: (

a) the defendants and co-conspirators entered into agreements; (

b) the purpose of which was to exact the resale overcharge causing coincidental harm to the plaintiff, and to coordinate the acts of conspiracy, the defendant’s secondary market conduct, and price maintenance conduct; and (

c) all of these actions caused damage to Ms. Watch and other class members. [ 163 ] Counsel for Ms. Watch submits that this pleading is sufficient, and she is not required to provide further particulars at this time. Citing Watson , at paras 132, 134, 142, and 143 , he asserts that at the certification stage it is not necessary for the court to look behind the pleading and evaluate the likelihood of success at a common issues trial. [ 164 ] The defendants maintain that such pleading is woefully inadequate and, consequently, it should be struck. They assert that Ms.

Watch does not allege that the defendants conspired with their true competitors, such as StubHub or Vivid Seats which operate other online marketplaces for the purchase and sale of secondary market event tickets. [ 165 ] The defendants assert that it is uncontested that these competitors are the dominant players in the secondary market. See, especially: Tarlton Affidavit, at paragraph 15, and Cross-Examination of Patti-Anne Tarlton held on May 15, 2020, at pp. 47-48.

So far from being evidence of a price-fixing conspiracy, the allegations against the defendants are entirely consistent with an environment of fierce competition among companies, including Ticketmaster, for the business for ticket resellers and purchasers. [ 166 ] The defendants assert further that it is also uncontested that users of the TradeDesk software cannot communicate with each other to obtain market information or use it to coordinate pricing. See: Cross-Examination of Larry Plawsky held on May 12, 2020, at p. 101. [ 167 ] Consequently, the defendants maintain that not only has Ms.

Watch failed to plead a conspiracy claim with any degree of precision or particulars – which on its own is fatal – she would not be able to do so in the face of the evidence before the court. [ 168 ] Counsel for Ms. Watch in his certification brief particularly at paragraph 122 asserts there is also a subset of class members who qualify as “umbrella” or “indirect” purchasers.

They so qualify because they are alleged to have acquired resale tickets from non-defendant or non-co-conspirator suppliers of event tickets. [ 169 ] Ticketmaster acknowledges since Pioneer Corp. v Godfrey , 2019 SCC 42 , [2019] 3 SCR 295 [ Godfrey ] , it is generally accepted that “umbrella” purchasers may have a claim against alleged conspirators under ss. 36 and 45 of the Competition Act . See especially: Godfrey at para 78 . [ 170 ] Yet, Ticketmaster asserts that umbrella purchasers do not form any part of the class for which certification is sought.

It points to the Amended Notice of Application for Certification filed in this case which at paragraph (

b) describes the proposed “Resale Subclass” as all persons in Canada who “purchased tickets for events from ... any one of the Defendants or any co-conspirators through any Defendant ticket resale website or electronic platform …”. By definition then, the proposed “Resale Subclass” is confined to those individuals who purchased tickets using one of the defendant’s websites such as www.ticketmaster.ca . These individuals are not umbrella purchasers.

Consequently, Ticketmaster maintains that this aspect of the Second Amended Statement of Claim does not disclose a cause of action for these purchasers. [ 171 ] Finally, counsel for Ms. Watch submits that the tort of conspiracy by unlawful means is made out by expr

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