Case information

Civil procedure — Class action — Authorization to institute class action — Conditions for authorization — No arguable case — Whether Court of Appeal erred in law in authorizing class action in complete absence of factual allegation, of representative with personal cause of action and in shifting burden of proof — Through its interventions, whether Court of Appeal erred in law in overstepping limits of its role in appeal from judgment refusing authorization of class action — Code of Civil Procedure, CQLR, c. C 25.01, art. 575.

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Because of the closure of Canadian borders provoked by the adoption of emergency health measures in the context of the COVID-19 pandemic that occurred in the beginning of 2020, the applicants Air Transat A.T. Inc. and Transat Tours Canada Inc. (collectively: “Air Transat”), Air Canada and Touram Limited Company also doing business as Air Canada Vacations (collectively: “Air Canada”), WestJet Airlines Ltd. and WestJet Vacations Inc. (collectively: “WestJet”) and Sunwing Airlines Inc. and Sunwing Vacations Inc. (collectively: “Sunwing”), air transport companies and their related companies that offer travel packages and airplane tickets, cancelled all flights leaving from Canada. They informed their customers, including the respondents, Alain Lachaine and Gregory Bonnier, that they would not be providing any reimbursement for the airplane tickets or travel packages, but instead a travel credit subject to certain conditions. In March 2020, the respondents filed an application for authorization to institute a class action against Air Canada and Air Transat. In the course of their application, the respondents sought, on behalf of all natural persons who had purchased or held an airplane ticket or a travel package from those applicants that had been cancelled because of the pandemic, the full reimbursement of the cost paid with interest from the date on which they should have received a reimbursement in addition to an amount of money for moral damages (trouble and inconvenience) and for punitive damages. That application for authorization was amended on several occasions, namely in April 2021 to add the applicants WestJet and Sunwing. Coinciding with those events, the applicants WestJet, Air Canada and Air Transat gradually, starting in October 2020, set up a voluntary reimbursement program through which they undertook to reimburse all of the airplane tickets cancelled because of the pandemic. In June 2021, the Superior Court dismissed the application for authorization of a class action against WestJet, Air Canada and Air Transat because of, mainly, the implementation of reimbursement programs. However, the application for authorization of a class action against Sunwing was allowed in the absence of a reimbursement program similar to that of the three other applicants. In October 2021, that class action was also dismissed by way of an application for review by the fact that Sunwing had adopted a reimbursement program similar to those adopted by the three other applicants. The Court of Appeal allowed in part the appeal filed by the respondents against the two Superior Court judgments, set aside the judgments and authorized the class action against all of the applicants.