Beware of Punitive Damages in Consumer Law!

May 1, 2010

The Quebec Court of Appeal recently rendered a long-awaited decision in a consumer protection class action.

On February 26^th, the Court dismissed the main appeal and cross-appeal in Brault and Martineau Inc. vs. Riendeau for the reasons which were written by Justice Duval Hesler, which were endorsed by both Justice Gendreau and Justice Dalphond.

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April 14, 2021

Loss of personal information: The Superior Court dismisses a class action

On March 26, 2021, the Superior Court rendered a decision dismissing a class action against the Investment Industry Regulatory Organization of Canada (“IIROC”) on the loss of personal information of thousands of Canadian investors.1 The lack of evidence of compensable injury and IIROC’s diligent behaviour are the main reasons for the dismissal of the class action. The Facts On February 22, 2013, an inspector working for IIROC forgot his laptop computer in a public place. The computer, which contained the personal information of approximately 50,000 Canadians, was never found. The information had originally been collected by various securities brokers who were under inspection by IIROC. Mr. Lamoureux, whose personal information was on the computer, brought a class action on behalf of all persons whose personal information was lost in the incident. He claimed compensatory damages for the stress, anxiety and worries associated with the loss of personal information, as well as compensation for the injury associated with the identity theft or attempted identity theft of members. He also claimed punitive damages for unlawful and intentional infringement of the right to privacy protected by the Quebec Charter of Human Rights and Freedoms. On this point, the members claimed that IIROC had been reckless and had delayed in notifying affected persons and brokers, as well as relevant authorities. Decision The class action is dismissed in its entirety. Compensatory damages The Superior Court started by acknowledging IIROC’s admission that it was at fault for the loss of the computer, and that the computer was not encrypted as it should have been to comply with IIROC policies. With respect to compensatory damages, the Court reiterated the principle according to which the existence of fault does not presume the existence of injury; each case must be analyzed on the basis of the evidence.2 In this case, the injury alleged by the members can be summarized as follows: They suffered worry, anger, stress and anxiety about the incident. They were forced to monitor their financial accounts, and in particular their credit cards and bank accounts. They were inconvenienced and wasted time in having to deal with credit agencies and ensuring that their personal information was protected. They felt shame and suffered delays caused by identity checks on their credit applications attributable to flags on their files. In its analysis, the Court held that, apart from the fact that the members were generally troubled by the loss of their personal information, there was no evidence of any particular and significant difficulties related to their mental state. Relying on Mustapha v. Culligan of Canada Ltd.,3 the Court reiterated that “the law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.” If the injury is not serious and prolonged, and is limited to ordinary discomforts and fears that are inherent to life in society, it does not constitute compensable injury. In this case, the Court found that the negative feelings experienced as a result of the loss of personal information did not rise above the level of ordinary discomforts, anxieties and fears that people living in society routinely accept. Having to monitor one’s personal accounts more closely does not qualify as a compensable injury, as the courts equate this practice with that of [translation] “a reasonable person who protects their assets.”4 The Court also considered the fact that IIROC provided members with free credit monitoring and protection services. It thus concluded that, in this respect, there was no injury to compensate. Finally, the experts who were mandated to analyze the circumstances and wrongful use of the investors’ personal information found that there was no clear indication of wrongful use of the information by a person or group of persons, although evidence of wrongful use of personal information is not necessary to assert a claim. Punitive damages The plaintiff, on behalf of the members of the class action, also sought punitive damages on the grounds that IIROC had been reckless in its handling of the incident. To analyze IIROC’s diligence, the Court noted the following facts. IIROC launched an internal investigation in the week that followed that of February 22, 2013, the date on which the computer was lost. On March 4, 2013, the investigation revealed that the computer likely contained the personal information of thousands of Canadians. IIROC filed a police report. On March 6, 2013, it mandated Deloitte to identify what personal information was lost and who were the affected persons and brokerage firms, and to help it manage the risks and obligations associated with the loss of the personal information. On March 22, 2013, Deloitte informed IIROC that the computer contained “highly sensitive” and “increased sensitivity” information about thousands of Canadian investors. On March 27, 2013, IIROC notified the Commission d’accès à l’information du Québec and the Office of the Privacy Commissioner of Canada. On April 8 and 9, 2013, IIROC met with representatives of the affected brokerage firms, and simultaneously mandated credit agencies to implement safeguards for investors and brokerage firms. IIROC also set up a bilingual call center, issued a press release about the loss of the computer and sent a letter to affected investors. The Court also accepted expert evidence according to which IIROC’s response was consistent with industry best practices, and that the measures put in place were appropriate in the circumstances and consistent with other responses to similar incidents. In light of the evidence, the Court concluded that the loss of the unencrypted laptop computer and the resulting violation of the right to privacy were isolated and unintentional. It therefore dismissed the claim for punitive damages. The outcome is that IIROC was not reckless: it rather acted in a timely manner. Comments This decision introduces a basis for analyzing the diligent conduct of a company should the personal information that it holds be compromised, and confirms that a prompt and diligent response to a security incident can safeguard against a civil suit. It also confirms that the mere loss of personal information, no matter how sensitive, is not in itself sufficient to justify financial compensation, and that it must be proven that injury was suffered. Furthermore, ordinary annoyances and temporary inconveniences do not constitute compensable injury, and monitoring financial accounts is not exceptional, but is rather considered the standard practice expected of a reasonable person protecting their assets. At the time of writing this bulletin, the time limit for appeal has not expired and the plaintiff has not announced whether he intends to appeal the judgment. Lamoureux v. Organisme canadien de réglementation du commerce des valeurs mobilières (OCRCVM), 2021 QCCS 1093. Sofio v. Organisme canadien de réglementation du commerce des valeurs mobilières (OCRCVM), 2014 QCCS 4061, paras. 21 and 22. Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 [2008] 2 SCR 114. Lamoureux v. Organisme canadien de réglementation du commerce des valeurs mobilières, 2021 QCCS 1093, para. 73.

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July 31, 2019

A Decision of Interest to the Entertainment Industry

Is an event organizer responsible for an artist’s late appearance? Context is key, answers the Superior Court’s, as it dismisses the application for authorization to institute a class action against Gestion Evenko Inc.1 regarding Travis Scott’s late appearance at the Osheaga Music and Arts Festival in the summer of 2018. Overview of the first class action on this topic in Quebec. Background The Osheaga Festival, organized by the defendant, Evenko, is a huge celebration dedicated to music and visual arts where artists of all genres perform for three days on the many outdoor stages set up in Parc Jean-Drapeau on Notre-Dame Island. Rapper Travis Scott was on the lineup for the evening of August 3, 2018. His performance was scheduled from 9:45 p.m. to 10:55 p.m. on the River stage. Wishing to attend this performance, the plaintiff, who had purchased a weekend pass, went to the venue at 8:45 p.m. Unfortunately, Travis Scott was held up at customs that evening. The sequence of events can be summarized as follows. At 9:55 p.m., Evenko displayed a first message on the site’s giant screens indicating that the show was delayed for a reason beyond its control. At 10:15 p.m., Evenko broadcast a second message, both on the giant screens and on Twitter, indicating that Travis Scott had been delayed at customs and was on his way to Notre-Dame Island. At 10:30 p.m., the plaintiff left the premises; she claimed that she did not believe Evenko's messages, feared a curfew and found the crowd aggressive. At 10:40 p.m., Evenko broadcast a third message on the giant screens confirming that Travis Scott had arrived on the island. At 10:55 p.m., Evenko broadcast a fourth message announcing to festival-goers that the show was about to begin. The show started at 11:00 p.m. and ended around 11:40 p.m. An application for authorization to institute a class action was filed the next day. The plaintiff sought to represent nearly 50,000 festival-goers who, in her opinion, suffered prejudice attributable to Evenko. She claimed that Travis Scott’s 90-minute delay constituted a breach of contract by Evenko such that all members of the group should obtain a refund equivalent to the value of a daily pass. The Decision In carrying out the analysis required by section 575 of the C.C.P., Justice André Prévost concluded that the alleged facts did not appear to justify the conclusions sought. The application for authorization to institute a class action was therefore dismissed. From the outset, the Court questioned some of the allegations in the application: for example, the plaintiff’s assertion that [translation] “Travis Scott’s performance was the main consideration in the contract with Evenko” seems incompatible with the fact that she purchased a three-day pass (paras. 51, 56); similarly, there was no evidence to support her claim that the crowd was aggressive (para. 54). However, it is mainly two deficiencies in the legal syllogism that led the Court to conclude that the application for authorization did not establish an arguable case or a reasonable prospect of success (para. 66). First, the Court refused to reduce the Osheaga Festival experience to a single performance, even that of a headliner. Rather, it described the event as [translation] “a comprehensive experience [...] whose interest lies in the multiplicity and simultaneity of cultural experiences” (para. 48). In fact, in addition to the invited musical, cultural and circus artists, there are various activities, fairs, cruises and awards ceremonies, to name but a few (para. 48). The Court pointed out that all documents relating to Osheaga’s programming and schedule contain one or more of the following warnings: “Schedule and lineup subject to change” or “Artists and schedule subject to change” (para. 47). These warnings are a strong indication that such delays are far from unusual or, in the words of the Court, [translation] “this is not exceptional for those acquainted with the cultural milieu” (para. 57). In this context, Evenko cannot be found to be at fault. The Court continued its analysis, adding that, even if it were found to be at fault, which is not the case, the situation did not result in any compensable damage: Citing Sofio2 and Mustapha3, the Court pointed out that mere annoyance is not prejudice, and that, in fact, [translation] “there is no evidence that Travis Scott’s delayed performance caused a more serious inconvenience than what is usual for people attending festivals of this nature” (para. 65). In short, in the context of a multi-genre festival, an artist appearing late does not necessarily constitute compensable prejudice and does not automatically amount to the promoter’s failure to fulfil its obligations. What It Means The decision is important to the entertainment industry in that it recognizes that major event organizers sometimes deal with unforeseen circumstances and they are allowed reasonable leeway to adapt to them. Of course, each situation will be particular, but a well-informed promoter will make sure to indicate that changes are possible in its documentation. The decision also recognizes that a comprehensive cultural experience is more than the sum of its parts: a single artist appearing late does not cast a pall on the entire event. This conclusion is likely to apply to many other industries: Osheaga is a typical example of a set of distinct and simultaneous performances, but the same characterization can be given to all the rides in an amusement park or all the individual sections of a zoological garden. Our partners, Myriam Brixi and Laurence Bich-Carrière have successfully represented Evenko's interests in this case. Le Stum c. Gestion Evenko inc., 2019 QCCS 2422. The time limit for appeal expired on July 22, 2019. Sofio c. Organisme canadien de réglementation du commerce des valeurs mobilières (OCRCVM), 2015 QCCA 1820. Mustapha v. Culligan of Canada Ltd., [2008] 2 SCR 114, 2008 SCC 27.

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July 31, 2018

Consumer Law: the Time Decision, again

This publication was authored by Luc Thibaudeau, former partner of Lavery and now judge in the Civil Division of the Court of Québec, District of Longueuil. Consumer law and class action suits go well together. In the recent Girard1decision, the Quebec Court of Appeal, in an opinion by the honourable Jacques Dufresne, noted certain principles that should guide the courts of first instance in the factual analysis of a consumer law case. In so doing, the Court of Appeal is reviewing the lessons of the Supreme Court of Canada in Time2 and applying them in the context of a class action. THE ABSOLUTE PRESUMPTION OF PREJUDICE The Time decision was related to an individual recourse brought by Mr. Jean-Marc Richard on the basis of misrepresentation for an announcement by Time that he had won sweepstakes in which he had not participated. In that case, which involved a violation of the Consumer Protection Act3, the Supreme Court set out four criteria for determining whether a consumer could benefit from an absolute presumption of prejudice and, therefore, from one of the remedies provided for in section 272 of the CPA: [Official English version] that the merchant or manufacturer failed to fulfil one of the obligations imposed by Title II of the Act; the consumer saw the representation that constituted a prohibited practice; the consumer’s seeing that representation resulted in the formation, amendment or performance of a consumer contract; a sufficient nexus existed between the content of the representation and the goods or services covered by the contract.4 The Girard case, for its part, was brought as a class action based on misrepresentations as to the calculation of a rebate offered by a provider of cable television, Internet and telephone services. Specifically, Mr. Girard criticized the service provider for not having disclosed a 1.5% fee payable to the Local Program Improvement Fund (LPIF) to its subscribers and for having miscalculated that fee.5 The Superior Court allowed the class action and ordered the service provider to pay members of the group nearly $6.5 million in compensatory damages and $1 million in punitive damages. The service provider appealed. Specifically, the judge of first instance found that she did not have to resort to the irrebuttable presumption of prejudice set out in Time, since it was clear that the consumer had suffered prejudice. For judge Dufresne, this constituted an error, but not one that justified the intervention of the Court of Appeal: [Translation] In fact, had she conducted an examination of the four criteria set out in the Time decision, she would nevertheless have concluded that the appellant should be ordered to reimburse the LPIF costs paid by its subscribers, members of the Group, beyond the actual cost of their cable television package.6 Regarding the first criterion of the analytical framework, the Court of Appeal opined that the members of the group had been victims of a business practice prohibited by the Consumer Protection Act due to the erroneous calculation of fees payable to the LPIF. Regarding the second criterion of the analytical framework, namely the awareness of the misrepresentation, judge Dufresne stressed that the members of the group had not been informed of the existence of the fees at the time the contract was made, nor of their method of calculation, the contract, as well as the invoice, being silent on this last point7. The second criterion of the Time decision was thus satisfied. We must conclude that the second criterion can be applied to an omission by the merchant, in the present case that of failing to disclose the method of calculation. The third criterion was not the subject of argument before the Court of Appeal. As for the fourth criterion —that of sufficient nexus— the service provider argued that Mr. Girard had admitted in his testimony that he would have entered into the contract even if he had known that the LPIF fees had been erroneously calculated and that the situation did not present [official English version] “sufficient nexus between the content of the representation [engaging in a prohibited business practice] and the goods or services covered by the contract”8 required by the Time decision. According to this fourth criterion, [official English version] “the prohibited practice must be one that was capable of influencing a consumer’s behaviour with respect to the formation [...] of the contract”9. Because Mr. Girard admitted that he would have entered into the contract anyway, one might think that the failure to reveal the method of calculating the LPIF would not have had any bearing on the formation of the contract. However, judge Dufresne does not hold with this argument: [72] [translation] [...] The misrepresentations, meaning the failure to disclose the method of calculation used and its repercussions, namely the act of collecting more from the respondents than the appellant itself pays to the CRTC for the LPIF, were capable of influencing their decision to contract with the appellant for its cable television services according to the terms and conditions on which they actually contracted.10 Thus, according to this excerpt, one might think that the fourth element of the analytical framework should be applied objectively. This approach stems from the Supreme Court’s use of the wording [official English version] “must be [...] capable of influencing a consumer’s behaviour”11. The Court of Appeal suggests here that the evaluation of the fourth element of the Time analytical framework must be objective, considering in particular the wording “must be capable” used by the Supreme Court. Yet, in its decision in the Dion case rendered in 2015, another panel of the Court of Appeal adopted a subjective approach, in concreto: [85] The judge in first instance correctly applied the aforementioned to the instant case when she held that the last criterion had not been satisfied given the stipulation that the Consumers would have purchased or leased a vehicle had the charge in question been itemized or broken down. There was, accordingly, no nexus between the prohibited practice and the Consumers’ behaviour. The Consumers’ decision to pay the amount of the charge or to “perform the contract” was not influenced by the prohibited practice. Thus, there was no presumption of prejudice. 12 This question may deserve to be revisited. It is true that an objective approach benefits consumers in that it reduces their burden of proof. However, it seems that the subject of the third criterion of the Time analytical framework argues in favour of a more factual, more concrete approach. That is what is stated in the (original) English version of justice Cromwell’s reasoning in Time: “that the consumer’s seeing that representation resulted in the formation [...] of the consumer contract”13. The use of this concept of “result” suggests to the decider to proceed in a subjective manner to an analysis of the facts of the case. With respect to the fourth criterion, the English version of the decision is also telling: “a sufficient nexus existed between the content of the representation and the goods or services covered by the contract”14. This concept of “existence” also invites to proceed with a subjective analysis. Consumer law cases must be decided in accordance with the rules of civil law. This is moreover one of the lessons from Time15. A subjective approach appears more compatible with the general principles of civil law according to which a sufficient causal connection is necessary to establish the existence of a cause of action. AWARD OF PUNITIVE DAMAGES Another important aspect of the Court of Appeal’s decision on Girard is the “punitive damages” component. Remember that at the court of first instance, the first judge had granted an award of punitive damages of one million dollars in addition to a monetary award of more than six million dollars. On appeal, the Court of Appeal reduced this award to $200,000. Relying once again on the Time decision, judge Dufresne noted certain principles that must guide the court when awarding punitive damages: [210] [Official English version] Where a court decides to award punitive damages, it must relate the facts of the case before it to the objectives that underlie such damages and ask itself how, in this particular case, awarding them would further those objectives. It must try to fix the most appropriate amount, that is, the lowest amount that would serve the purpose.16 (emphasis added). Then: [Official English version] Having regard to this objective and the objectives of the C.P.A., violations by merchants or manufacturers that are intentional, malicious or vexatious, and conduct on their part in which they display ignorance, carelessness or serious negligence with respect to their obligations and consumers’ rights under the C.P.A. may result in awards of punitive damages. However, before awarding such damages, the court must consider the whole of the merchant’s conduct at the time of and after the violations.17 Judge Dufresne recognizes that these principles argue in favour of an award of punitive damages as a remedy for the violation of the C.P.A. However, he considers the amount of one million dollars to go far beyond what is indicated by the circumstances to satisfy the objectives of the Act18. He also reiterates that the amount of punitive damages awarded, while being sufficient to serve the preventive function of the C.P.A., must be proportional to the seriousness of the alleged breaches19. However, all these factors being taken into consideration, the seriousness of the alleged breach is the most important20. On this point, judge Dufresne considers that, while not trivial, the seriousness of the C.P.A. violation should be put into perspective. He considers that the award of over six million dollars in compensatory damages carries a significant punitive effect and surely serves as a deterrent. In this sense, judge Dufresne considers that the decision of the Superior Court does not adequately assess the behaviour of the service provider before, during and after the violation of C.P.A. Even if the service provider’s defense proved to be unfounded, it did not amount to an abusive practice21. This intervention by the Court of Appeal in determining the amount of punitive damages could be characterized as exceptional. In Time, the Supreme Court recognized a certain discretion by the court of first instance in the award of -punitive damages: [Official English version] “[i]t should be borne in mind that a trial court has latitude in determining the quantum of punitive damages, provided that the amount it awards remains within rational limits in light of the specific circumstances of the case before it”22. This discretion, however, seems limited and must respect the duty of restraint of the judge who grants punitive damages. The Girard decision thus confirms the exceptional nature of the punitive damages, as recognized by the Supreme Court in Time23, and the need in consumer law for such damages to be justified in the general context of attaining the objectives of the Consumer Protection Act, namely (1) the restoration of an equilibrium in contractual relations between merchants and consumers and (2) the elimination of unfair practices that could distort the information available to the consumer and prevent him from making informed choices24. CONCLUSION The Court of Appeal’s decision in Girard will likely become the topic of much discussion. Consumer law is an area particularly conducive to class action suits and the four-part test set out in the Time decision to determine the applicability of the absolute presumption of prejudice will surely be used again by the courts in the near future. The question of whether the analytical criteria should be assessed objectively or subjectively certainly deserves to be discussed in greater depth. This question is of particular interest in the context of class actions. With respect to the "punitive damages" component of the decision, it appears that the decision in first instance is one of the rare cases where the Supreme Court accepts that an appellate court may review a first instance decision to award such damages. Justice Cromwell wrote in Time: [Official English version] “[a]n assessment will be wholly erroneous if it is established that the trial court clearly erred in exercising its discretion, that is, if the amount awarded was not rationally connected to the purposes being pursued in awarding punitive damages in the case before the court”25. Considering the Court of Appeal’s intervention in the Girard decision, we may assume that the duty of restraint of the trial judge is central to achieving this objective. The deadline for requesting permission to appeal to the Supreme Court is August 11. So this is a case to follow! Vidéotron v. Girard, 2018 QCCA 767 (hereinafter: “Girard”). Richard v. Time, 2012 SCC 8 (hereinafter: “Time”). CQLR c. P-40.1 (the “C.P.A.”). Time, para. 124. Girard, para. 13. Girard, para. 48. Girard, paras. 65-66. Time, para. 124; Girard, para. 70. Time, para. 124; Girard, para. 70. Girard, para. 72. (emphasis is added unless indicated otherwise) Time, para. 124. Dion c. Compagnie de services de financement automobile Primus Canada, 2015 QCCA 333, para. 85. Time, para. 124 (emphasis added). ENGLISH VERSION: “that the consumer’s seeing that representation resulted in the formation [...] of [the] contract”. However, the French version reads: “la formation, la modification ou l’exécution d’un contrat de consommation subséquente à cette prise de connaissance” [translation: the formation, modification or execution of a consumer contract following that awareness] (emphasis added). Time, para. 124 (emphasis added). ENGLISH VERSION: “a sufficient nexus existed between the content of the representation and the goods or services covered by the contract”. However, the French version reads: “une proximité suffisante entre le contenu de la représentation et le bien ou le service visé par le contrat” [translation: a sufficient nexus between the content of the representation and the good or service concerned in the contract] (emphasis added). Time, para. 111. Time, paras. 210 & 215; Girard, para. 100. Time, para. 180; Girard, para. 102. Girard, para. 103 Girard, para. 105. Time, para. 190. Girard, para. 111. Time, para. 190. This is consistent with existing case law. See: Banque de Montréal v. Marcotte, [2014] 2 SCR 725, 2014 SCC 55, para. 98; Cinar Corporation v. Robinson, 2013 SCC 73, para. 134; and Dion, paras. 128-129. Time, para. 150. Time, paras. 160-161. See also: Banque de Montréal v. Marcotte, [2014] 2 SCR 725, 2014 SCC 55, para. 55. Time, para. 190.

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April 5, 2018

Class actions to watch for in the air transport sector

Many Canadians travel by airline. Aside from the pleasure of travel, certain inconveniences may sometimes occur, for both air carriers and passengers alike. A class action suit is often the preferred procedural vehicle for customers to assert their rights. Recent class actions authorized by the Quebec courts raise interesting issues. The courts will be considering the application of the Convention for the Unification of Certain Rules for International Carriage by Air (the “Montreal Convention”) and of the right of passengers to claim moral damages, as well as the rates and accuracy of pricing under the Canada Transportation Act1 will be a subject of debate. Claims for moral damages Whether moral damages may be recovered pursuant to the Montreal Convention remains a thorny issue and the topic of much judicial discussion. The Court of Appeal decisions in Croteau v. Air Transat AT inc.2 and Plourde v. Service aérien FBO inc. (Sky Service F.B .O. Inc.)3 appeared to have settled the matter. In each of these cases, the Court of Appeal concluded, among other things, that the initial court judge had reason to refuse to authorize the class action with respect to the conclusions whereby class members sought compensation for psychological damage suffered during a flight. Such damage is not compensable pursuant to Article 17 of the Montreal Convention, which establishes the liability of the air carrier in the event of death or bodily injury of passengers. However, these cases did not address the matter of moral damages occasioned by a delay pursuant to Article 19 of the Montreal Convention, which stipulates that the air carrier is liable for damage occasioned by a delay. In 2012, in the matter of Yalaoui v. Air Algérie4, the Superior Court authorized a class action for the members of a group of passengers who were on a direct flight from Algiers to Montréal that had been delayed for approximately 15 hours. More specifically, the members claimed moral damages for the inconveniences occasioned by the delay, pursuant to Article 19 of the Montreal Convention. In 2017, the Superior Court5 dismissed the action on the basis that the air carrier had taken all of the reasonable measures to ensure the proper maintenance and repair of the aircraft, without being able to avoid the delay. The matter of moral damages was, therefore, not addressed. This question of awarding of moral damages recently resurfaced in Auguste v. Air Transat6. The group, composed of more than 120 passenger ticketholders, who were left in Port-au-Prince by the air carrier, received authorization to initiate a class action against the air carrier. The members of the group are claiming, pursuant to Article 19 of the Montreal Convention, moral damages occasioned by a two-day delay. In the same case, the Superior Court7 authorized in 2016 that the notices to the members, who were directed to the Haitian community, be broadcast over the airwaves of a Haitian radio station so as to reach the maximum number of persons. This method of broadcasting the notice is, at first blush, exceptional, yet the Court, using its discretion, was of the opinion that the interest of the members warranted it. The hearing is scheduled to take place in April 2018. Overcharging In 2013, in the case of Chabot v. WestJet,8 a class action was authorized against an air carrier. The members of a group allege that the carrier overcharged them for a companion seat or for a seat adapted to their condition due to a disability or surplus weight. The authorized group was composed of passengers with a functional disability and their travelling companions, which occurred on flights operated by the air carrier since December 5, 2005. The matter is of interest in that it is the result of a decision rendered by the Canadian Transportation Agency. An independent quasi-judicial tribunal and regulator, the Agency has all of the powers of a Superior Court with respect to the exercise of its jurisdiction in connection with national transportation matters. On January 10, 2008, the Agency ruled that air carriers could not demand a fee for additional seats needed to accommodate individuals having certain significant disabilities.9 Thus, in the context of the class action pending before the Superior Court, it must be determined whether the air carrier’s pricing policy is discriminatory or abusive and, if so, whether moral and punitive damages may be awarded. In connection with this same matter, the Court of Appeal10 confirmed in 2016 that the Superior Court had jurisdiction to hear the case, which is based on contractual liability and that, in so doing, it could interpret the Canada Transportation Act11, since the case does not fall within the exclusive jurisdiction of the Canadian Transportation Agency. In 2017, the Superior Court12 split the class into two groups distinguishing between domestic and international travellers. The matter is pending. Still on the subject of overcharging, the authorization to exercise a class action was granted in Choquette v. Air Canada13 for the members of a group who allege having to pay fuel surcharges when purchasing their airline tickets. As in Chabot v. WestJet,14 the Superior Court deemed competent to hear the matter, absent a legal provision granting exclusive jurisdiction to the Canadian Transportation Agency. The proceedings are also ongoing. Accuracy of Prices Finally, the matter of the Union des consommateurs v. Air Canada15 raises the question of the accuracy of the prices advertised by an air carrier. In 2014, the Court of Appeal authorized the exercise of a class action by customers who would have paid a higher price than that which was posted by the air carrier in its ads and on its website. In February 2018, notices to the attorney generals of Quebec and Canada were filed in the court record to challenge the constitutionality of the Consumer Protection Act with regards to travel tickets advertised and sold on an air carrier’s website. The case is ongoing. Several important questions in the context of class action proceedings against air carriers will be considered by the Courts. The answers could impact the rights of customers and air carriers, as well as those of their insurers. Canada Transportation Act, S.C. 1996, c 10 Croteau v. Air Transat AT Inc., 2007 QCCA 737 Plourde v. Service aérien FBO inc. (Sky Service F.B.O. Inc), 2007 QCCA 739 Yalaoui v. Air Algérie, 2012 QCCS 1393 Yalaoui v. Air Algérie, 2017 QCCS 5479 Auguste v. Air Transat, 2015 QCCS 3923 Auguste v. Air Transat, 2016 QCCS 604 Chabot v. WestJet, 2013, QCCS 5297 Decision no 6— AT-A-2008 WestJet v. Chabot, 2016 QCCA 584; Application for leave to appeal to the Supreme Court of Canada was dismissed WestJet v. Nicole Chabot, in her quality of tutor to her minor child N.C., et al., 2016 CanLII 72704 (SCC) Canada Transportation Act, S.C. 1996, c. 10 Chabot v. WestJet, 2017 QCCS 4942 Choquette v. Air Canada, 2017 QCCS 234 Westjet v. Chabot, 2016 QCCA 584 Union des consommateurs v. Air Canada, 2014QCCA 523

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