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CIVIL PROCEDURE - Parties - Class or representative actions - Certification - Common interests and issues

Wednesday, September 27, 2017 @ 8:44 AM  


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Appeal by the plaintiffs from the refusal to certify their action as a class proceeding. The plaintiffs were passengers who purchased international airline tickets through travel agents. They alleged that fuel surcharges charged by the airlines were improperly described on their tickets as taxes. They asserted that the practice was deceptive and violated the Business Practices and Consumer protection Act (Act). They sought declarations and damages under the Act. Alternatively, they claimed that the practice led to unjust enrichment of the airlines to the extent that they kept amounts shown on the tickets as taxes. They argued that the ticket receipts constituted an essential part of their contract with the airline. They argued that while the airline was entitled to charge a fuel surcharge and was entitled to keep amounts shown as airline charges, the airlines had no entitlement to retain taxes or third party fees. The plaintiffs argued that in retaining the amounts shown as taxes, the airlines were unjustly enriched and the passengers were entitled to reimbursement of such amounts. The chambers judge denied certification on the grounds that the pleadings disclosed no cause of action and that there were no common issues that could be effectively decided in a class proceeding. On appeal, the plaintiffs only sought to have the unjust enrichment claims certified.

HELD: Appeal dismissed. The pleadings did not disclose a cause of action, as they did not adequately articulate the plaintiff’s theory that the contracts between them and the airlines did not authorize fuel surcharges. However, the claims could, if amended, set out causes of action in unjust enrichment. The judge’s decision to deny certification was correct because the plaintiffs had not identified a common issue that was appropriate for a class proceeding. The tickets were sold in different ways by different travel agents. Whether the travel agents acted as agents for the airlines was an issue that could not be determined as a common issue, but rather required individual investigation. Similarly, different agents provided different forms of tickets, some of which aggregated the fuel surcharge with other taxes and some of which did not.

Unlu v. Air Canada, [2017] B.C.J. No. 1795, British Columbia Court of Appeal, M.E. Saunders, H. Groberman and P.M. Willcock JJ.A., September 12, 2017. Digest No. TLD-Sept252017008