The appellant, a charity licensed to sell break open lottery tickets (BOTs), brought a class action seeking restitution of a provincial administration fee, arguing it was an unconstitutional indirect tax.
The respondents successfully moved for summary judgment to strike the restitution claim, adducing evidence that the fee was borne by consumers through a reduced prize board, not by the charities.
The Court of Appeal upheld the summary judgment, finding the appellant failed to adduce evidence showing a genuine issue for trial regarding who bore the burden of the fee or its entitlement to restitution.