- Lack of Commonality Precludes Consumer Class Certification Says B.C. Court of Appeal
- June 23, 2015 | Authors: Brad W. Dixon; Michelle T. Maniago
- Law Firm: Borden Ladner Gervais LLP - Vancouver Office
In Marshall v. United Furniture Warehouse Limited Partnership, a unanimous division of the British Columbia Court of Appeal upheld the lower court’s refusal to certify a claim where consumers received varied combinations of written and oral representations. This decision is critical for any business whose front-line staff engage directly with consumers.
The Plaintiffs’ Claim
The plaintiffs attempted to certify a class action against the respondents, the United Furniture and Brick group of companies (and certain predecessor organizations), on the basis that they misled consumers into believing that a “cash voucher” program, administered by a third party, was guaranteed by them. The plaintiffs alleged that this was a deceptive act or practice under the British Columbia Business Practices and Consumer Protection Act (“BPCPA”).
The plaintiffs alleged that the guarantee was created by a combination of certain parts of the text on the vouchers, newspaper advertisements, in-store signs and tags, and oral representations by sales people. The evidence before the court was that every customer had
to deal with a sales person in making his or her purchase and that each sales person gave differing amounts of detail about the program to consumers. Counsel for the plaintiffs acknowledged that different plaintiffs would have been exposed to different sources of information.
Certification Judge’s Refusal to Certify
The certification judge, in refusing to certify the claim, held that the claim failed to establish necessary commonality of experience for the consumer to justify a class action. She wrote:
...while there is some commonality in the written sources, the evidence demonstrates that different customers received a varying amount of information from sales staff, both written and oral. The fact that the plaintiffs rely on varying combinations of written material and oral representations to prove a deceptive act or practice renders a determination of this issue one for individual inquiry.
The Court of Appeal Reasons for Judgment
The Court of Appeal held that the certification judge’s finding that oral representations were in the “mix for every customer” was supported by the evidence, and was owed deference. The Court upheld the refusal to certify.
The Court of Appeal concluded:
Each customer had a different experience in the store(s). Under the BPCPA, each class member would have to demonstrate that he or she fell within the Act. The appeal can be disposed on this basis. There is no error in the chambers judge’s findings on this aspect of the case, and that alone is enough to uphold her decision that certification is not the preferable procedure.
The full decision of the Court of Appeal is available online, and is indexed as 2015 BCCA 252.
Impact of Decision
This decision affirms that the certification analysis still must be robustly applied to protect the courts from unwieldy class actions that are devoid of commonality.