COURT FILE NO.: 407/08
DATE: 20090331
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HACKLAND R.S.J., SWINTON AND KARAKATSANIS JJ.
B E T W E E N:
SUZANNE LAVIER Plaintiff (Appellant)
- and -
MYTRAVEL CANADA HOLIDAYS INC. and MYTRAVEL GROUP PLC Defendants (Respondents)
Joel P. Rochon and Sakie Tambako, for the Plaintiff (Appellant)
Sally A. Gomery and Jamie Macdonald, for the Defendant (Respondent) MyTravel Canada Holidays Inc.
HEARD at Toronto: February 18 and 19, 2009
SWINTON J.:
Overview
[1] The appellant Suzanne Lavier appeals from the order of Perell J. dated July 10, 2008, in which he dismissed her motion for certification of this action as a class proceeding pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the "CPA"). She also seeks leave to appeal the costs awarded to the respondent in the amount of $125,000.00.
Background Facts
[2] The respondent MyTravel Holidays Inc. ("MyTravel") is a tour operator that provides vacation packages, including airfare and hotel accommodation. Among its tours were packages to three RIU resorts in Puerta Plata, Dominican Republic: the Riu Bachata, Riu Merengue, and the Riu Mambo. These were offered through Sunquest Vacations. Almost all Sunquest packages are booked through travel agents, rather than directly through MyTravel.
[3] The proposed class consists of individuals who booked Sunquest vacation packages through MyTravel for holidays at these three Riu hotels between November 1, 2004 and June 7, 2005.
[4] On November 23, 2004, the appellant used the Internet to book a holiday in Puerta Plata with Sunquest for herself and her boyfriend. They were to travel with another couple and stay at the Riu Merengue from January 3, 2005 to January 10, 2005. The package gave them access to the other two Riu hotels.
[5] One week prior to departure, the appellant learned about an outbreak of an unidentified illness at the Riu resorts in the Dominican Republic from an Internet site. She emailed the Riu sales office and contacted the Sunquest Customer Service Department to express her concern about the reports of illness. Sunquest advised her that there was no concern about such illness in the Dominican Republic or at the Riu resorts. She was further advised that if she did not travel on the dates booked, she would have to forfeit the cost of her trip.
[6] It is not disputed that by late December 2004, MyTravel started to receive reports there were a greater number than usual of travellers with gastro-intestinal illnesses at the Riu resorts in Puerta Plata. On December 31, 2004, MyTravel became aware of a complaint that seven Sunquest passengers had experienced gastrointestinal illness at Riu Bachata. On January 2, 2005, a MyTravel representative at the resort advised that there had been sickness, and the situation was being monitored.
[7] On January 4, 2005, MyTravel was advised by Skyservice, a charter airline company, that over 85 per cent of the 180 passengers on a returning flight from Puerta Plata were ill on the flight. Some of these passengers had stayed at the Riu hotels.
[8] From January 7, 2005, MyTravel asked for and received daily updates from staff at the Riu resorts regarding the ongoing illness at the resorts.
[9] Meanwhile, the appellant left for Puerta Plata on January 3. On January 4, 2005, she and her companions were moved to the Riu Bachata. Within one or two days of her arrival at the Riu Bachata, she became extremely ill with symptoms including fever, chills, vomiting, dizziness, severe headaches and diarrhoea. These symptoms continued throughout her holiday and for three to four weeks after her return. Her travelling companions also became ill, as did many other guests at the resort.
[10] On January 11, 2005, on her return to Canada, the appellant saw her doctor and was told that the most likely diagnosis was a Norwalk viral infection. Norwalk virus (now "norovirus") is a common gastrointestinal illness resulting in fever, chills, dizziness, headaches, stomach pains, vomiting and diarrhoea. As a result of her illness, the appellant says that she lost three weeks of work.
[11] The appellant contacted Sunquest to report her experience and also contacted the media. On January 21, she received an email offering her a complimentary holiday by way of a travel voucher at a Riu resort, provided that she signed a full and final release and provided medical proof of her illness. She did not do so, as she had a number of concerns, including the fact that the release referred to the "stomach flu" and not to norovirus.
[12] On January 14, 2005, MyTravel had issued a temporary "stop-sell" order for any new bookings to the Riu Bachata, where the illness seemed to be concentrated, and issued callbacks to travel agents to obtain their co-operation in advising passengers booked at the Riu Bachata to move to another hotel. MyTravel also began to move travellers from the Riu Bachata to other hotels and permitted those at all the three Riu resorts to change their hotel, destination or date without penalty, first for travel until January 21 and then later until mid-February.
[13] On January 17 and 18, 2005, MyTravel received food and safety audit reports conducted at the Riu resorts by independent auditors. While they showed that the resorts received a top rating, they also showed extensive evidence of poor hygiene in the food preparation areas, including evidence of rodents and cockroaches at two of the sites.
[14] On January 20, 2005, the Public Health Agency of Canada issued a travel health advisory respecting reports of gastrointestinal illness in the Dominican Republic. On January 26, 2005, MyTravel received confirmation that a guest at the Riu resorts in Puerta Plata had tested positive for a norovirus.
[15] MyTravel contacted travel agents, asking them to have travellers change their bookings from the Riu resorts. A letter from MyTravel was sent to those who refused, indicating that MyTravel would not be held responsible if the travellers became ill while at the resorts. For those already staying at the resorts, MyTravel offered to cover expenses if the travellers stayed on until well enough to travel.
[16] On February 10, 2005, Riu management informed MyTravel that all steps had been taken to eradicate norovirus at the resorts, and there were now few cases of illness. Effective February 16, Sunquest passengers were given the choice to stay at the Riu resorts or change existing bookings without penalty until the end of February.
[17] On February 27, MyTravel received reports of three Sunquest travellers at two of the Riu resorts who had gastrointestinal problems. In the second week of March, MyTravel received reports of an increased rate of such illnesses at the Riu resorts, although affecting less than 5% of Sunquest passengers. It issued a bulletin to travel agents asking them to advise their customers that they could change their travel plans without penalty for departures up to March 31, 2005. This offer was subsequently extended for those who had booked vacations up to April 30, 2005.
[18] MyTravel states that there were no further reports of gastrointestinal illness at the Riu resorts from mid-March to early June, 2005, when the resorts were closed for annual maintenance.
[19] MyTravel offered travel vouchers for a free holiday or cash to Sunquest passengers who could show that they had been ill at the Riu resorts in Puerta Plata between December 20, 2004 and January 26, 2005. After the increase in illness in March 2005, the offer was extended from November 2004 to the end of March 2005, on the condition that the traveller provided proof of illness, for example, by a doctor's note or a prescription. Some vouchers were provided to those with no medical proof as a goodwill gesture. A total of 1,773 passengers accepted such offers and, in return, signed releases in favour of MyTravel.
The Certification Decision
[20] The appellant commenced an action in which she claimed that from November 1, 2004 to June 7, 2005, MyTravel breached its duty of care and contractual obligations by knowingly sending travellers to the Riu resorts and into harm's way. More specifically, she alleges that MyTravel failed to take adequate steps to disclose the risk of a Norwalk-like viral outbreak at the resorts.
[21] Subsection 5(1) of the CPA sets out the criteria for certification of a class proceeding:
The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,
(a) the pleadings or the notice of application discloses a cause of action;
(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;
(c) the claims or defences of the class members raise common issues;
(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and
(e) there is a representative plaintiff or defendant who,
(i) would fairly and adequately represent the interests of the class,
(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and
(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.
[22] The motions judge determined that the appellant's pleadings disclosed a cause of action, although he expressed some reservations about her allegation that the class members were owed a "disease free, virus free" holiday.
[23] With respect to the identifiable class requirement, he observed that the class definition would have to exclude any individual who had signed a release in favour of MyTravel Canada or who had booked a holiday through its Quebec affiliate. The motions judge concluded that the revised class definition was objectively verifiable, but it remained too broad, because there was no basis in fact for concluding that there was a viral outbreak at the Riu resorts throughout the proposed class period. He would have revised the class definition to limit it to travellers to the Riu resorts between December 20, 2004 and March 31, 2005.
[24] The motions judge held that if the class definition were narrowed, the existence of a duty of care and a duty to warn and the breach of those duties could be tried as common issues. However, the contractual issues could not be tried as common issues, because there was no common contract or common representations to individual travellers.
[25] Certification was ultimately rejected because the motions judge determined that a class proceeding was not a preferable procedure. He held that a class proceeding would not be a "fair, efficient and manageable procedure", given the number of individual issues that would remain following the trial of the common issues. He further concluded that a class proceeding would not meet the goals of the CPA with respect to access to justice, judicial economy and behaviour modification, and there were alternative procedures available through Small Claims Court or Simplified Procedure actions.
[26] In an endorsement dated September 2, 2008, the motions judge awarded costs of $125,000.00 against the appellant. She seeks leave to appeal that order.
The Issues on Appeal
[27] The appellant has raised three issues on appeal:
Did the motions judge err in principle in determining that the appellant's proposed class did not satisfy the s. 5(1)(b) requirement?
Did the motions judge err in determining the preferable procedure requirement?
Did the motions judge err in awarding costs against the appellant?
The Standard of Review
[28] As stated by the Ontario Court of Appeal in Pearson v. Inco Ltd. (2006), 78 O.R. (3d) 641 at para. 43"The decision of the motion judge on a certification motion is entitled to substantial deference." The Court went on to state that the decision on preferable procedure was entitled to "special deference because it involves weighing and balancing a number of factors." On appeal, a court will interfere only if the motions judge made a palpable and overriding error of fact or erred in principle. However, errors of law are reviewable on a correctness standard.
Analysis
Issue No. 1: Did the motions judge err in principle in determining that the appellant's proposed class did not satisfy the s. 5(1)(b) requirement?
[29] Pursuant to s. 5(1)(b) of the CPA, the motions judge must determine if there is "an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant". The jurisprudence has established a number of characteristics of an identifiable class. Membership in it should be determined by objective criteria that do not depend on the outcome of the litigation or the merits of the common issues. As well, the class criteria should bear a rational relationship to the common issues asserted by all class members (Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534 at para.38).
[30] The class must be bounded and not of unlimited membership. Moreover, it must not be unnecessarily broad (Hollick v. Toronto (City) (2001), 2001 SCC 68, 205 D.L.R. (4th) 19 (S.C.C.) at paras. 17, 20-21).
[31] A plaintiff in a proposed class proceeding must show some "basis in fact" for each of the certification requirements, other than that the pleading discloses a cause of action (Hollick, supra at para. 25).
[32] While the appellant originally proposed a class of individuals who had travelled to the Riu resorts in Puerta Plata between November 1, 2004 and June 7, 2005, the class was narrowed, during argument of the certification motion, to those who travelled between December 1, 2004 and April 30, 2005. The motions judge found that class to be overly inclusive for the following reason (at para. 103 of his Reasons):
The universality of the definition, however, is problematic; based on the record now before the court, there is no basis in fact for concluding that the circumstances of wrongdoing were constant over the seven-and-half months of the class period and thus the class definition appears to be over-inclusive. The problem is that based on the factual record now before the court, there is not a single mass wrongdoing but sporadic or sequential wrongdoing. To use an analogy, the case at bar might be a series of train wrecks but it is not a single crash.
[33] More precisely, he stated (at para. 104):
… other than by arbitrary extrapolation, there is no basis in fact for concluding that for the entire class period, the proposed class members have a claim against the defendant for which there would be a common issue connected to the class.
[34] The motions judge concluded that the class definition would meet the s. 5(1)(b) criterion if it included travellers to the resorts between December 20, 2004 and March 31, 2005. Such a class would be rationally connected to the claim of the appellant and have sufficient commonality. He appears to have chosen this time frame based on the period used by MyTravel for its offer of a holiday voucher for those who became ill at a Riu resort (see Reasons, para. 106).
[35] The appellant submits that the motions judge applied a test inconsistent with the existing jurisprudence: in requiring a constant wrongdoing over the class period, he is said to have imposed a new merits-based evidentiary burden on the appellant to support the identifiable class criterion. Alternatively, the appellant argues that the motions judge made a palpable and overriding error of fact by restricting the class as he proposed. The appellant submits that the motions judge failed to appreciate that MyTravel had offered a voucher for travellers who had become ill between December 1, 2004 and March 31, 2005, and had allowed travellers to change hotel destination or travel dates up until April 30, 2005.
[36] If the motions judge had required that there be constant wrongdoing throughout the class period, he would be in error. Courts have certified product liability cases even though the standard of care and/or the duty to warn may have evolved over the class period (see, for example, Boulanger v. Johnson & Johnson Corporation, [2007] O.J. No. 179 (S.C.J.) at para. 18; Tiboni v. Merck Frosst Canada Ltd., [2008] O.J. No. 2996 (S.C.J.)). Moreover, the Court of Appeal held that a class should be certified for those who attended a native residential school during a defined period, as well as their family members, even though the standard of care would have changed over time (Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (C.A.) at para. 59).
[37] However, in my view, nothing turns on the comment by the motions judge. His real concern was the overinclusiveness of the proposed class, as is evident in paragraph 104 of the Reasons. If the class were to include all those who travelled with Sunquest throughout the whole period proposed, it would include a large number of people who travelled to the resorts at a time when there was no evidence of gastrointestinal illness. According to the evidence of Jill Wykes, a vice-president of MyTravel, there were no cases of gastrointestinal illness reported after mid-March, 2005. Therefore, in accordance with the principles relating to class definition, the motions judge restricted the class to those with a colourable claim based on the common issues.
[38] The appellant submitted that the motions judge made a palpable and overriding error when he found that there was no basis in fact to extend the class earlier than December 20, 2004 and later than March 31, 2005. To show that the class period should begin December 1, 2004, the appellant relies on the fact that MyTravel offered travel vouchers to those who became ill at Riu resorts between December 1, 2004 and March 31, 2005. She relies on the fact that MyTravel allowed travellers to rebook until April 30, 2005 to support her argument that the end of the class period should be April 30, 2005.
[39] In my view, she has failed to show that the motions judge made a palpable and overriding error of fact when he determined the appropriate class definition.
[40] The appellant proposes as common issues the existence of a duty of care and an alleged breach of that duty. The breach was allegedly caused because MyTravel knowingly or carelessly provided vacation packages at resorts that were experiencing a disease outbreak, or because MyTravel failed to warn of the disease outbreaks at the resorts. The evidence filed by both the appellant and the respondent indicates that information about an outbreak of illness began to surface sometime in late December 2004. There is ample evidence of widespread illness at the Riu resorts in January. The only evidence of illness after that date is from MyTravel and indicates that there were some further cases in mid-March. There is no evidence that there were further illnesses in April.
[41] The proposed class must be rationally connected to the common issues proposed by the representative plaintiff. Given the evidence before him, the motions judge concluded that the proposed class definition was overbroad because it included a large number of travellers who would not have a claim in negligence.
[42] Furthermore, the motions judge found common issues with respect to the narrowed class and specifically found that he was not satisfied the issues would be common to the proposed broader class. The appellant did not appeal the motions judge's findings on common issues.
[43] I am not satisfied that the motions judge erred in using December 20, 2004 as the start date, as that was the initial start date for the voucher, and it was shortly before the appellant and the respondent heard news of a possible outbreak of disease in Puerta Plata. Nor did he err in the end date, by choosing the end of the voucher period. Just because MyTravel took the precaution of allowing travellers to book elsewhere as late as April 30, 2005, this does not provide a basis to show there were individuals who might have claims in negligence against the respondent because of travel in April. Therefore, I would not give effect to this ground of appeal.
Issue No. 2: Did the motions judge err in determining the preferable procedure requirement?
[44] The motions judge correctly identified the legal principles applicable to a determination of the preferable procedure criterion. According to the Supreme Court of Canada in Hollick, supra"the preferability inquiry should be conducted through the lens of the three principal advantages of class actions – judicial economy, access to justice, and behavioural modification" (at para. 27). This requires the motions judge to determine two questions: first, whether the class proceeding would be a "fair, efficient and manageable method of advancing the claim", and second, whether the class proceeding would be preferable to other procedures such as joinder, test cases and consolidation (at para. 28).
[45] The motions judge's discussion of preferable procedure is found in two separate sections of his Reasons. In the first part, described as his "macroscopic view", he dealt with the purposes of the CPA and concluded that the proceeding should not be certified. He stated that the appellant had not demonstrated that the 7,000 individual claims were uneconomic unless they were pursued in a class proceeding (Reasons, at para. 69). I note that in this section of his reasons, he was talking of claims in the period of November 1, 2004 to June 7, 2005, a period which he later narrowed in determining the appropriate definition of the class.
[46] He went on to state,
… individual claims have not been shown to be prohibitively expensive to pursue and it appears that the cost of the proposed litigation would be aggravated, not ameliorated, by a class proceedings for the class period as proposed. (at para. 70, emphasis added)
In his view, the putative class members would have viable Small Claims Court actions (at para. 71), noting that 27 Small Claims Court actions had been commenced and 13 had settled.
[47] He also concluded that a class proceeding was not justified by the goal of judicial economy. While he noted that there might be judicial economy "if [the appellant] confined her class to those similarly situated", she had not done so. It was his view that the conditions and MyTravel's knowledge would change over time. Therefore"the extended time line invites participation of persons whose situation or predicament was not common to that of the representative plaintiff".
[48] He also concluded that the class proceeding was not justified by the goal of behaviour modification, as MyTravel would "learn its lessons" just as well from Small Claims Court proceedings as a class proceeding. Moreover, the steps taken by MyTravel with vouchers and allowing changes to holiday plans suggested that there had already been some education about MyTravel's legal responsibilities.
[49] The motions judge later returned to the preferable procedure requirement as he worked through his analysis of s. 5(1) of the CPA. At this point, he discussed the importance of the common issues in relation to the individual issues that would remain to be determined. He concluded that significant individual issues remained: damages and causation in fact and law in respect to the negligence claim, what travellers were told by travel agents in respect to the duty to warn, recovery for damages for mental distress for those who suffered no physical illness, and all the contract claims. Given the duplication between individual and common issues trials, he felt it was debatable whether there would be substantial economies in a class proceeding.
[50] He then referred back to his macroscopic analysis and in light of that discussion and the individual issues concerns, he concluded that a Small Claims Court proceeding or a Simplified Procedure action would be the preferable procedure. He also stated (at para. 140):
Unless the proposed class definition is substantially narrowed temporally, a great deal of work done at a common issues trial will be of no utility for an individual claimant and will offer little in the way of judicial economy. A more focused Small Claims Court action would be preferable. (emphasis added)
[51] The analysis of the motions judge respecting the preferable procedure criterion is problematical, in part because of the way in which he split the discussion. His task was to determine whether a class proceeding was the preferable procedure for determining the issues he found to be common. In doing so, he was required to determine whether a class proceeding is a fair, efficient and manageable method for determining the common issues. As part of that analysis, he was required to assess the common issues in context. As well, he was to determine whether a class proceeding would be preferable to alternative means of resolving the claims.
[52] What the motions judge did was discuss the preferable procedure, in his "macroscopic" analysis, without reference to the narrowed class definition that he indicated he would have approved, as well as the common issues he found. It appears that a major reason for rejecting a class proceeding in the macroscopic analysis was the overbroad class definition, as indicated in the parts of his Reasons that I have emphasized above.
[53] What the motions judge should have done was to analyze the preferable procedure criterion in light of the narrower class, working his way through the various steps of the analysis. In my view, he failed to do so, as he does not appear to have turned his mind directly to the question whether a class proceeding would be a fair, efficient and manageable procedure for the common issues found. Therefore, he erred in principle.
[54] The motions judge correctly stated that the preferability criterion required him to look at the common issues in context. He concluded that the individual issues would overwhelm the common issues. In doing so, he appears not to have considered the many cases in which certification has been granted, even where there are substantial individual issues. The question to be determined is whether the resolution of the common issues will move the litigation forward in a significant way, a determination that is qualitative and not quantitative (Cloud, supra at paras. 76 and 84; Hollick, supra at para. 30).
[55] The motions judge accepted the following common issues:
Did MyTravel owe the Plaintiff and Class Members a duty of care to provide a vacation package to its vacation destinations not subject to known (or deemed to be known) viral/disease outbreaks?
Did MyTravel owe the Plaintiff and Class Members a duty to warn of known (or deemed to have known) viral/disease outbreaks at its vacation destinations?
Did MyTravel breach the duties owed to the Plaintiff and Class Members described in paragraphs 1 and 2 above? If so, how?
Are the Plaintiff and Class Members entitled to punitive damages against MyTravel? If so, in what amount? Should punitive damages be assessed in the aggregate? If so, in what amount and how should punitive damages be distributed?
[56] While causation and damages will remain individual issues, determination of a duty of care and breach of that duty in a negligence action are substantial aspects of a negligence action. Their resolution will significantly advance the litigation. The fact that causation and damages remain has not been a reason to deny certification in many other negligence cases. See, for example, Cloud, supra; Tiboni, supra at para. 100; Andersen v. St. Jude Medical Inc. (2003), 67 O.R. (3d) 136 (S.C.J.).
[57] Here, as in those cases, a finding with respect to the duty of care and the breach thereof would substantially advance this litigation. If the plaintiffs are successful, causation and damage claims would remain, but they would be much less complicated than those in cases like Cloud or Tiboni. If the defendant is successful in whole or in part, that will put an end to many or all of the claims.
[58] Moreover, even if a number of individual issues would remain to be resolved after the common issues trial, the motions judge was still required to consider whether the class proceeding would be a fair, efficient and manageable procedure, having regard to the three goals of the CPA: access to justice, judicial economy, and behavioural modification.
[59] With respect to access to justice, the motions judge concluded that it would not be "prohibitively expensive" to pursue individual claims (at para. 70). That is not the correct question to ask. The Supreme Court of Canada in Hollick, supra spoke of access to justice in the following terms (at para. 15):
… by distributing fixed litigation costs amongst a large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own.
[60] To be fair to the motions judge, he went on to find that it would be economically viable for proposed class members to pursue an individual action in Small Claims Court or under the Simplified Procedure. However, he never really examines the viability of such proceedings for some 4,000 class members. Even if some individuals have pursued a Small Claims Court proceeding, that is not determinative with respect to access of justice. As Cullity J. stated in LeFrancois v. Guidant Corp. [2008] O.J. No. 1397 (S.C.J.)"The question is not whether individual actions are possible – but whether a class proceeding is preferable to individual actions by each of the approximately 2000 members of the putative class" (at para. 93).
[61] Moreover, when one considers the claims to be proven here – the existence of a duty of care and breach of that duty over a period of several months – it is unlikely that most class members would find it economically viable to retain a lawyer and pursue a Small Claims Court action for what will often be modest damage claims.
[62] In discussing access to justice, the motions judge never addressed some of the procedural advantages of a class proceeding. Unlike in the two alternative procedures to which he referred, discovery of the respondent will be possible in the class proceeding. This provides a real advantage for the class members, given that they will have to prove what MyTravel knew about the conditions at the resorts and when in order to prove a breach of the duty of care and the duty to warn. As well, case management is available in a class proceeding, which can facilitate timely determination of the issues.
[63] The motions judge held that there was some analytical similarity between the present case and Hollick, where the Supreme Court of Canada refused certification for a case alleging environmental pollution. The Court there held that a class proceeding was not the preferable procedure, because access to justice was provided through a Small Claims Trust Fund, which provided an alternative avenue of redress. That fund was created by the defendant City of Toronto as a condition of its certificate of approval to operate the disposal site which gave rise to the complaints. It was a no fault source of compensation for claims up to $5,000. In the present case, the Small Claims Court proceedings are not comparable, as any claimant will have to establish liability on the part of the respondent and damages in order to recover. Therefore, Hollick is not a comparable case.
[64] With respect to judicial economy, the motions judge found that there would be no judicial economy if there were a class proceeding, largely because he found the proposed class too broad (Reasons, at paras. 77-78). However, if the narrower class he framed were considered, it is obvious that there would be judicial economy if the class is certified. Absent certification, there could be hundreds of individual actions (given an estimated 4,000 class members) taking up the time of the Small Claims Court. Moreover, there would be a risk of conflicting findings with respect to the duty of care and the breach thereof.
[65] With respect to behaviour modification, the motions judge concluded that the respondent would learn its lesson as much from Small Claims Court proceedings as from a class action. That assumes, of course, that there would be a flood of individual actions, which is unlikely to be the case given the size of the claims and the difficulties of access to the courts. It also ignores the potential value of a class proceeding to modify the behaviour of other tour operators.
[66] In sum, although a motions judge's determination of the preferable procedure is normally entitled to substantial deference, in this case, the motions judge erred in failing to consider the advantages of a class proceeding when considered against alternative procedures in light of the narrower class definition. Therefore, I would allow the appeal for this reason.
Issue No. 3: Did the motions judge err in awarding costs against the appellant?
[67] Given my finding on the merits, I do not need to address the costs issue, as the costs award must be set aside in light of the finding on the merits of the appeal.
Conclusion
[68] The appeal is allowed, and the orders of the motions judge dismissing the motion for certification and awarding costs are set aside. While the appellant seeks an order for certification, it would not be appropriate for this Court to make such an order. The motions judge indicated that were he to have found a class proceeding the preferable procedure, he would not have granted certification because he would not approve the litigation plan in its then current form. Therefore, the appropriate remedy in this appeal is to refer the issue of certification back to him, so that the appellants can provide a revised litigation plan.
[69] If the parties cannot agree on costs of the appeal, they may make brief written submissions within 30 days of the release of these reasons.
Swinton J.
Hackland R.S.J.
Karakatsanis J.
Released: March 31, 2009
COURT FILE NO.: 407/08
DATE: 20090331
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HACKLAND R.S.J., SWINTON and KARAKATSANIS JJ.
B E T W E E N:
SUZANNE LAVIER Plaintiff (Appellant)
- and -
MYTRAVEL CANADA HOLIDAYS INC. and MYTRAVEL GROUP PLC Defendants (Respondents)
REASONS FOR JUDGMENT
SWINTON J.
Released: March 31, 2009