Canada: B.C. Court Of Appeal Affirms Refusal To Certify Business Practices And Consumer Protection Act Claims

On June 3, 2015, in Marshall v. United Furniture Warehouse Limited Partnership (Marshall), the B.C. Court of Appeal dismissed the plaintiffs' appeal from the application judge's denial of certification of a proposed class action arising from a cashable voucher promotion offered in United Furniture Warehouse (UFW) stores. The Marshall case is a recent example of the B.C. courts refusing to certify consumer protection class actions where they do not satisfy the statutory requirements for certification. In this case, the application judge and the Court of Appeal found the plaintiffs' claims lacked sufficient commonality to proceed as a class action and did not meet the requirement that a class action be the preferable procedure.

CASHABLE VOUCHER PROGRAM

UFW offered a promotion in its stores across Canada in 2003–04 where customers who purchased eligible furniture could receive a cashable voucher issued by a third party — The Consumers Trust — for part or all of the value of the furniture. A portion of the revenue from each transaction was paid by the retailer to The Consumers Trust to participate in the program. The cashable vouchers matured three years after the date of issue. At that time, if the customer satisfied all of the terms and conditions on the voucher and followed the specific instructions for redemption, the customer was eligible to redeem the voucher for an amount up to the amount of the voucher. The advertising and brochures regarding the cashable vouchers were explicit that the program operated on the premise that most individuals would forget to submit their voucher(s) for redemption or fail to satisfy the conditions on the voucher. It was, in other words, a memory game.  

UFW ended its participation in the cashable voucher program in the fall of 2004. In December 2005, before any of the vouchers that had been issued to UFW customers had matured and could be redeemed, The Consumers Trust filed for bankruptcy. Pursuant to the terms and conditions of the vouchers, UFW was expressly not responsible to pay any amounts for the vouchers, but offered in-store credit to customers with vouchers as a customer satisfaction measure.

B.C. SUPREME COURT DECISION

The plaintiffs sought to pursue a class action on behalf of all persons who received cashable vouchers after making purchases from UFW. The plaintiffs' central claim was that UFW committed a deceptive act or practice under the Business Practices and Consumer Protection Act by misrepresenting to customers — through in-store signage, brochures, fliers and other advertisements, the text on the vouchers themselves, and oral representations by sales representatives — that UFW would ensure that customers would receive money for the cashable vouchers if they met all conditions and properly submitted them for redemption at maturity.

Madam Justice Fisher of the B.C. Supreme Court refused to certify the action. Among other things, she concluded that proposed common issues required consideration of various individual documents and individual oral representations from sales staff, rather than a single, common representation. As a result, the action would break down into individual issues requiring individual assessments. For this reason, a class action would also not be the preferable procedure.

COURT OF APPEAL DECISION

On appeal, the plaintiffs argued that the chambers judge erred in finding that they relied on written and oral representations to prove the alleged deceptive acts and practices and that there were sufficient common written representations to allow a class action to proceed. In brief reasons for judgment, the Court of Appeal held that the chambers judge's conclusion that the oral representations were "part of the mix for every customer" was supported by the evidence. The Court of Appeal held that Justice Fisher's conclusion was entitled to deference, and on this basis alone, dismissed the appeal. The Court of Appeal also found that Justice Fisher made no error in her findings regarding the individualized nature of the case and upheld her decision that certification as a class action was not the preferable procedure. 

The Court of Appeal's decision in Marshall demonstrates the deference to be afforded to a chambers judge's assessment of the issues of commonality and preferable procedure. The Court of Appeal's analysis substantially adopted the reasoning of the chambers judge, with minimal further discussion.

The decision demonstrates that courts will refuse to certify class actions where the plaintiffs seek to characterize the issues as common, but on the evidence they involve individual issues, such as individual representations and individual reliance. 

Blakes represented the respondents 551148 B.C. Ltd., John Volken and David Gerstner at both the Supreme Court of British Columbia and the B.C. Court of Appeal.

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