Gagnon, Beaupré, Baudouin

Appeal from Superior Court judgments ruling on authorization to institute a class action. Allowed in part. Oral application to amend an appeal brief. Dismissed.

The appellants filed a class action against airlines or related companies after airplane tickets or travel packages were cancelled due to the COVID-19 pandemic. The respondents later announced the creation of voluntary refund programs.

The trial judge first concluded that the major differences observed between all the fares, terms, and conditions of the airline services provided by the respondents made it impossible to determine a common issue because each term and condition would have to be analyzed to resolve the dispute. The judge then concluded that the announcement of the creation of voluntary refund programs had extinguished the appellants and putative members’ cause of action regarding their airline ticket refund and that the appellants therefore no longer had an arguable case to assert against the respondents.

By summarily analyzing the differences of the possible multiple contractual arrangements between the respondents and the class members, as well as the fares, terms, and conditions submitted by the respondents and their application, the judge paid too much attention to the elements that distinguished the members between themselves to the detriment of recognizing common issues that could serve to advance the resolution of the class action. Several issues identified by the appellants appear to meet the requirements set out in article 575(1) of the Code of Civil Procedure (CQLR, c. C-25.01) (CCP) because the respondents’ situation is essentially rather similar  since they are airlines or related companies that sold airline tickets or travel packages to clients and refused to refund some of them or, at least, to pay interest on the late refunds and on the alleged damages.

With respect to the sufficiency of the facts raised in support of the conclusions sought, the judge erred by prematurely concluding that the putative members’ causes of action were extinguished.  Indeed, he had no details on the respondents’ programs that allowed him to state with certainty that all the putative members had been refunded or were in fact going to be refunded, and that they no longer had an interest in the action because of these programs. Moreover, even if the right to be refunded the cost of an airline ticket or travel package was extinguished, this would not extinguish a claim for interest arising from the respondents’ delayed refund of the amounts owing as of the formal notice and for moral and punitive damages.

The continuation of the class action in these circumstances may raise questions regarding the action’s proportionality, but it must be borne in mind that the law on class actions is concerned, in its very essence, with modest claims, that class actions deter potential wrongdoers from ignoring their obligations, and that the proportionality principle is not a separate fifth condition of article 575 CCP. The class description must be amended, however, to reflect that fact that the appellants have not proved, even prima facie, a legal syllogism regarding a global or even national class action against the respondents.

Last, it should be noted that the appellant Lachaine no longer has the requisite capacity to properly represent because he was refunded by the issuer of the credit card used to purchase his package.

Text of the decision: http://citoyens.soquij.qc.ca