CITATION: Airia Brands v. Air Canada, 2016 ONSC 1371
COURT FILE NO.: 50389CP
DATE: 2016/02/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Airia Brands Inc., Startech.Com Ltd., and QCS-Quick Cargo Service GMBH
Plaintiffs
- and -
Air Canada, AC Cargo Limited Partnership, Societe Air France, Koninklijke Luchtvaart Maatschappij N.V. dba KLM, Royal Dutch Airlines, Asiana Airlines Inc., British Airways PLC, Cathay Pacific Airways Ltd., Deutsche Lufthansa AG, Lufthansa Cargo AG, Japan Airlines International Co., Ltd., Scandinavian Airlines System, Korean Air Lines Co., Ltd., Cargolux Airline International, LAN Airlines S.A, LAN Cargo S.A., Atlas Air Worldwide Holdings Inc., Polar Air Cargo Inc., Singapore Airlines Ltd., Singapore Airlines Cargo PTE Ltd., Swiss International Air Lines Ltd., Quantas Airways Limited, and Martinair Holland N.V.
Defendants
COUNSEL:
Charles Wright and Kerry McGladdery Dent, on behalf of the plaintiffs
Danielle Royal, on behalf of the defendants Air Canada, AC Cargo Limited Partnership and appearing as agent for counsel of British Airways PLC
John P. Brown, on behalf of the defendant Cathay Pacific Airways Ltd.
HEARD: January 22, 2016 and February 10, 2016 conference call
David Gadsden, on behalf of the non-party International Air Transport Association participated in the conference call
LEITCH J.
RE: Notice approval in relation to the settlement with cathay pacific airways ltd.
RE: production of customer sales data to facilitate notice
[1] The plaintiffs entered into a settlement agreement with Cathay Pacific Airways Ltd. (“Cathay”) dated November 27, 2015. On this motion the plaintiffs seek approval of a notice of hearing in respect of the settlement with Cathay, and an order appointing Garden City Group, LLC (“Garden City”) as administrator for the purposes of providing notice and receiving, processing and consolidating sales data produced as described herein.
[2] In addition the plaintiffs seek an order respecting disclosure of customer information by Air Canada and AC Cargo Limited Partnership (“Air Canada”) and British Airways PLC (“British Airways”), freight forwarders and International Air Transport Association to facilitate the notice and claims process.
[3] I will first address the requested approval of the proposed notice. As the plaintiffs note, they have entered into 11 previous settlement agreements. Notice has been given to the class on six occasions.
[4] Deutsche Lufthansa AG, Lufthansa Cargo AG and Swiss International Airlines Ltd. (collectively referred to as “Lufthansa”) were the first defendants to enter into a settlement agreement with the plaintiffs. Lufthansa produced to the plaintiffs its direct purchaser customer information to facilitate a direct notice by mail to those class members.
[5] Garden City was retained to develop and implement a notice program in the United States, Canada and worldwide respecting the settlements with Lufthansa in Canada and the United States.
[6] In addition, on May 2, 2008 this court ordered that all other defendants provide Garden City with the names and addresses of their customers who purchased airfreight shipping services during the relevant period for the purposes of providing notice by direct mail. I note that there were two defendants added to the action after the May 2, 2008 order was granted and they were obliged to provide their customer information pursuant to the terms of their settlement agreements.
[7] International Air Transport Association (“IATA”), a non-party, was also required to provide customer names and information to Garden City pursuant to the May 2, 2008 order.
[8] According to the information filed on this motion, the number of persons who will receive direct notice as a result of information provided by IATA and the defendants totals 36,000.
[9] Notice given in relation to the Lufthansa settlement was the most substantial notice program implemented in relation to this action. The proposed notice plan in relation to the Cathay settlement is narrower considering the prior notices to class members. The proposed form of notice has been modified to “improve readability and better capture settlement class members’ attention” and now includes graphics and minimal text. The proposed plan of notice is approved.
[10] The recommendation of class counsel that Garden City be appointed to disseminate the notice is accepted. As counsel observed, Garden City has acted in this capacity throughout this proceeding and in the parallel action in the United States.
[11] I note that it is contemplated that, subject to a similar order being made in the parallel actions in British Columbia and Quebec, that the Settlement Approval Hearings in relation to the settlement with Cathay Pacific shall be joint hearings conducted in accordance with the Canadian Judicial Protocol for the management of multi-jurisdictional class actions. That process is welcomed by this court.
[12] The approved form of order respecting notice approval has been signed.
[13] I turn next to the requested production orders relating to customer information. Class counsel seek an order requiring Air Canada and British Airways, as the non-settling defendants, and IATA to provide customer information to Garden City.
[14] The relief was consented to by Air Canada, British Airways and IATA. I note that the form of order ultimately agreed to by counsel contains revisions sought on behalf of Air Canada and British Airways. The order signed in relation to the production by IATA was approved by counsel for IATA.
[15] The plaintiffs also seek an order pursuant to s. 12 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 and s. 73(c) of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 to authorize freight forwarders to disclose their customer information for the limited purpose of providing notice and facilitating the claims administration process pursuant to the proposed distribution protocol.
[16] Section 7(3)(c) of the Personal Information Protection and Electronic Documents Act permits businesses to disclose personal information without the knowledge or consent of the individual pursuant to an order made by the court with jurisdiction to compel the production of the information.
[17] Customer information was defined to include names, addresses, contact information of customers who purchased air freight shipping services for shipments to or from Canada, excluding air freight shipping services for shipments to or from the United States, between January 1, 2000 and September 11, 2006 and the aggregate purchase prices paid by such customers for such air freight shipping services.
[18] The plaintiffs propose to correspond with freight forwarders asking for voluntary disclosure of their customer information for the limited purposes described above.
[19] Class counsel have fully outlined in their motion materials the reasons for the requested orders by providing affidavits of class counsel and the chief operating officer of Garden City, Ms. Keough.
[20] The materials filed in support of this motion include information indicating that Garden City routinely handles confidential information and will implement security measures to protect all customer information received. Garden City has specifically outlined the security measures it will implement.
[21] The proposed distribution protocol contemplates that settlement class members may rely on the purchase data provided by the defendants, IATA and the freight forwarders as prima facie proof of the relevant purchases so as to simplify the claims process, facilitate the highest possible claims rate and decrease the expense of claims administration by reducing the time required to review proofs of claim.
[22] At para. 24 of the affidavit of Ms. Keough, she provides the following summary:
If the Court requires the Non-Settling Defendants and IATA to produce Customer Information gathered during the normal course of business, including name, address and purchase amounts, and authorizes Freight Forwarders to provide their Customer Information on a voluntary basis, in my opinion, this will allow the best possible direct mail notice campaign to occur, the most optimized and simplistic claim process possible, and reduce the claims administration, thereby reducing expense. Absent Customer Information from the Non-Settling Defendants, IATA, and Freight Forwarders, a direct mail program will not be able to be employed as effectively, the claims process will be very labor intensive and both the claimant and Claims Administrator, and costs for the administration work will be higher than necessary.
[23] The factum filed on behalf of the plaintiffs reviews the relevant jurisprudence supporting the order sought, noting that this type of information is information that defendants will ultimately have to provide through the discovery process (see: Markle v. Toronto (City) , [2004] O.J. No. 3773, 42 CCPB 69) and this production order has been made against non-settling defendants in other price-fixing cases (see: The Fanshawe College of Applied Arts and Technology v. LG Philips LCD Co., Ltd. et al. (10 January 2014) and Westminster Mutual Insurance Company v. TYC Brother Industrial Co. Ltd. et al. (7 September 2012))
[24] Further as the plaintiffs’ factum outlines, production of names, contact information and Ontario Health Insurance Plan numbers of class members had been ordered against Ontario public health agencies in Iovine v. Toronto Sun Wah Trading Inc, 2014 ONSC 6555, 111 W.C.B. (2d) 896, in which it was concluded that s. 12 of the Class Proceedings Act satisfies what is the equivalent provision of s. 7(3)(c) of the Personal Information Protection and Electronic Documents Act under the Personal Health Information Protection Act, 2004.
[25] I conclude that s. 12 satisfies the requirements of s. 7(3)(c) of Personal Information Protection and Electronic Documents Act just as the court in Iovine concluded that s. 12 satisfies the equivalent section in the Personal Health Information Protection Act, 2004 ,S.O. 2004, c. 3, Sched. A. This is also consistent with the conclusion of the British Columbia Supreme Court in Dalhuisen (Guardian ad litem of) v. Maxim’s Bakery Ltd., 2002 BCSC 1146, 4 B.C.L.R. (4th) 196.
[26] It is important to emphasize that the production of this information is to fulfil the goals of a class proceeding and ensure access to justice to the class members and to ensure they benefit from the settlements.
[27] Garden City is to maintain the confidentiality of the customer information provided by Air Canada, British Airways and any freight forwarder and will not disclose any such information except to the specific settlement class member to whom the customer information relates. I am persuaded that the court has authority to make the order sought pursuant to s. 12 of the Class Proceedings Act. The requested order will enhance the effectiveness of the notice program and as class counsel has explained will simplify the claims process and increase access to justice by facilitating participation of absent class members.
[28] Garden City is permitted to use the customer information for the sole purpose of facilitating the claims administration process pursuant to the court approved distribution protocol. All such information is to be deleted and destroyed with a certification to the court that that action has occurred when the litigation relating to this action is finally concluded.
[29] For the foregoing reasons, the form of order approved by counsel for IATA requiring IATA to provide their customer information to Garden City has been signed. The form of order approved by counsel for Air Canada and British Airways appointing Garden City as administrator, requiring Air Canada and British Airways to provide their customer information to Garden City and authorizing freight forwarders to provide their customer information to Garden City has also been signed.
“Justice L. C. Leitch”
Justice L. C. Leitch
Date: February 26, 2016
CITATION: Airia Brands v. Air Canada, 2016 ONSC 1371
COURT FILE NO.: 50389CP
DATE: 2016/02/26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Airia Brands Inc., Startech.Com Ltd., and QCS-Quick Cargo Service GMBH
Plaintiffs
- and -
Air Canada, AC Cargo Limited Partnership, Societe Air France, Koninklijke Luchtvaart Maatschappij N.V. dba KLM, Royal Dutch Airlines, Asiana Airlines Inc., British Airways PLC, Cathay Pacific Airways Ltd., Deutsche Lufthansa AG, Lufthansa Cargo AG, Japan Airlines International Co., Ltd., Scandinavian Airlines System, Korean Air Lines Co., Ltd., Cargolux Airline International, LAN Airlines S.A, LAN Cargo S.A., Atlas Air Worldwide Holdings Inc., Polar Air Cargo Inc., Singapore Airlines Ltd., Singapore Airlines Cargo PTE Ltd., Swiss International Air Lines Ltd., Quantas Airways Limited, and Martinair Holland N.V.
Defendants
REASONS FOR decision
LEITCH J.
Released: February 26, 2016