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14 April 2021
The British Columbia Supreme Court recently certified two class actions against WestJet:
For several years the domestic and international tariffs that WestJet filed with the Canadian Transportation Agency and published on its website pursuant to the Transportation Act contained the same inconsistency. The tariffs stated that "for each fare paying passenger travelling, the carrier permits a free checked baggage allowance of one (1) item". However, the tariffs also stated that each passenger would be charged the following fees for the first checked bag:
It seems that the checked baggage provisions in the tariffs were themselves unchecked.
In common law provinces (ie, in all provinces other than Quebec, which has a slightly different test), a proceeding must meet five criteria to be certified as a class action:
In this case, the representative plaintiff sought to bring a claim on behalf of a worldwide class of individuals who had paid a fee for their first checked bag during a period in which WestJet's tariff had stated – at least in part – that their first checked bag would be carried for free.
Cause of action
The plaintiff pleaded three causes of action:
Because WestJet's tariffs contradicted themselves on the issue of baggage fees for the first checked bag, WestJet conceded that it was not "plain and obvious" that the claim disclosed no cause of action in breach of contract and unjust enrichment. It was at least arguable that no baggage fee should have been collected where the applicable tariff had appeared to state that no fee would be charged.
However, WestJet argued that the claim disclosed no cause of action under the Competition Act. 'Double ticketing', a practice prohibited by Section 54 of the Competition Act, is defined as:
the supply [of] a product at a price that exceeds the lowest of two or more prices clearly expressed…in respect of the product…at the time at which it is so supplied, (a) on the product, its wrapper or container; (b) on anything attached to, inserted in or accompanying the product, its wrapper or container or anything on which the product is mounted for display or sale; or (c) on an in-store or other point-of-purchase display or advertisement.
The plaintiff pleaded that WestJet's tariffs breached Section 54 of the Competition Act because they had clearly expressed both that a passenger's first checked bag was free and that passengers had to pay a fee of between C$25 and C$35.40 when checking in.
WestJet argued that the publication of a price in a tariff, which many passengers do not review prior to or at the time of purchase, did not sufficiently amount to a clear expression which met the criteria of Section 54 of the Competition Act. Justice Francis rejected this argument on the basis that determining whether it had merit would require an evaluation of evidence, which was impossible at the certification stage.
However, the court accepted that the claim, as originally drafted, had not sufficiently pleaded that the two alleged prices were expressed at the time of supply (ie, at the same time). The original claim had pleaded that the zero price in the tariff was expressed at the time of booking, while the second price was expressed at the time of travel. Therefore, Francis held that a necessary element of the claim under the Competition Act had been inadequately pleaded.
This was not the end of the matter. Francis opined that the deficiency in pleading could be rectified and granted the plaintiff leave to amend the claim.
In March 2021 the court reviewed:
Francis was satisfied that the deficiency which she had noted had been cured and certified the plaintiff's claim under Section 54 of the Competition Act so that the case could proceed with the breach of contract and unjust enrichment claims.
In her first decision, Francis accepted that the plaintiff had established "some basis in fact" for the remaining four certification criteria.
The court rejected WestJet's argument that a worldwide class would be unwieldy and difficult to manage. Similarly, the court held that passengers who had not seen the tariffs prior to booking their tickets should not be excluded because the contracts bound the parties even if the passengers did not read them.
Because the tariffs were 'adhesion' contracts (ie, standard form contracts), Francis rejected WestJet's argument that the precise terms of the contract would depend on each individual class member's reasonable expectations. While the court accepted that the tariffs were ambiguous, it held that this was not a reason to deny certification. Rather, the interpretation of the tariffs would be among the issues to be determined at a common issues trial.
WestJet argued that the proposed class proceeding was not the preferable procedure on the basis that the Canadian Transportation Agency would provide a better means of resolving class members' claims. The court rejected this argument because:
Finally, the court rejected the argument that the representative plaintiff had to testify that they had relied on the free baggage representation in one or both tariffs.
At the end of 2020, the British Columbia Supreme Court also certified a class action relating to WestJet's issuance of travel credits, which expired after one year. The claim alleged that the expiry of these credits violated the consumer protection legislation of several provinces, which prohibits the expiration of pre-paid purchase or gift cards.
WestJet issued two types of credit, which it called 'hard' and 'soft' credits:
While WestJet argued that neither hard nor soft credits met the consumer protection legislation definitions of pre-paid purchase or gift cards, the court held that all of these arguments depended heavily on an evaluation of evidence. Therefore, these arguments and determinations had to be left to trial. At the certification stage, the plaintiff had to show only that it was not plain and obvious on the face of the pleading that the claim would fail.
With respect to the other criteria, the court emphasised the relatively straightforward nature of the plaintiff's claim and the fact that WestJet had treated the various types of credit that it issued in a systematic way. These factors acted in favour of certification.
While WestJet may succeed in proving that either or both the hard and soft credits are not captured by the prohibition of the expiration of pre-paid purchase or gift cards, this question must be answered at trial.
For further information on this topic please contact Carlos P Martins or Andrew W MacDonald at WeirFoulds LLP by telephone (+1 416 365 1110) or email (firstname.lastname@example.org or email@example.com). The WeirFoulds LLP website can be accessed at www.weirfoulds.com.
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Carlos P Martins