Superior Court of Justice - Ontario

COURT FILE NO.: CV-20-00640518-CP00

DATE: 2022-09-19

RE: SHAYNE BEAUCAGE, Plaintiff

– and –

TICKETMASTER CANADA HOLDINGS ULC, TICKETMASTER CANADA ULC, LIVE NATION CANADA, INC., LIVE NATION ENTERTAINMENT, INC., Respondents

BEFORE: Justice E.M. Morgan

COUNSEL: Kirk Baert and Sue Tan, for the Plaintiff

James Gotowiec, Chris Richter, and Adrienne Oake, for the Respondents

HEARD: Motion in writing

CERTIFICATION OF CLASS ACTION

[1] The parties move on a consent basis for certification pending settlement of this proposed class action under section 5(1) of the Class Proceedings Act, 1992, SO 1992, c 6 (“CPA”).

[2] The claim alleges breach of contract, breach of the Consumer Protection Act, 2002, SO 2002, c 30, breach of the Competition Act, RSC 1985, c C-34, negligence and unjust enrichment resulting from the Defendants’ failure to provide timely ticket refunds to class members for events that were postponed, rescheduled or cancelled as a result of the COVID-19 pandemic and associated government restrictions. On August 16, 2022, the parties entered into a Settlement Agreement after having conducted arm's length settlement discussions. The Settlement Agreement is premised on the class action being certified. It will then be submitted to the court for approval under the CPA.

[3] The Statement of Claim discloses a number of causes of action that satisfy this criterion in section 5(1)(a) of the CPA. The Plaintiffs plead that the tickets at issue are contracts and that the Defendants’ failure to honour and/or refund those tickets is a breach of contract. They have also pleaded that the failure to honour the terms on which the tickets were sold amount to negligence and/or unjust enrichment by the Defendants.

[4] The Plaintiffs also plead that, contrary to both the Consumer Protection Act and the Competition Act, the Defendants made false, misleading and/or deceptive representations regarding the terms of cancellation on their website and that those terms did not exist or were not intended to be honoured by the Defendants. The pleading states that the losses suffered by class members are the full value of what was paid for the tickets. Similar claims based on breaches of section 14 of the Consumer Protection Act and section 52 and 36 of the Competition Act have been certified in the past.

[5] The Plaintiff seeks to represent the following class:

All individuals residing in Canada, except for Excluded Persons, who purchased one or more Tickets for an event taking place after March 11, 2020 that was postponed, rescheduled or cancelled after that date.

‘Excluded Persons’ means the Defendants, the past and present parents, subsidiaries, affiliates, officers, directors, senior employees, legal representatives, heirs, predecessors, and the successors and assigns of the Defendants.

‘Ticket’ means any ticket purchased prior to March 11, 2020 for an event in Canada, outside of Quebec, with the use of a computer through the www.ticketmaster.ca website or with the use of a mobile phone or other mobile device using a browser and the www.ticketmaster.ca website or using one of the Defendants’ mobile applications.

[6] This definition meets the requirement in section 5(1)(b) of the CPA that there be an identifiable class.

[7] The starting date of the class period appears to be a logical one. It coincides with the beginning of the COVID-19 pandemic. The exclusion of events in Quebec is included in order to account for the claims of class members under the parallel proceeding authorized by the Superior Court of Quebec on May 31, 2022, after the settlement was agreed in principle.

[8] The sole common issue proposed for certification is:

Did the defendants, or any of them, wrongfully fail to provide refunds to settlement class members for an event in Canada, excluding Quebec, taking place after March 11, 2020? If so, what damages, if any, did settlement class members suffer?

[9] Determination of this proposed common issue turns on the interpretation of a common contractual provision and on conduct by the Defendants toward the class members as contracting parties. It is thus an essential ingredient of all the claims of class members, and would avoid duplicative fact-finding or legal analysis moving forward. It therefore meets the requirements for common issues in section 5(1)(c) of the CPA.

[10] Under the circumstances, a class action also meets the requirement in section 5(1)(d) that it is the preferable procedure to resolve the dispute. This is particularly the case given the size of each individual claim relative to the cost and expense of bringing individual actions.

[11] Further, this Court has previously observed that where certification is sought for the purpose of a proposed settlement, and there is a cause of action, an identifiable class, and common issues, there is a strong basis to conclude that a class proceeding is the preferable procedure: see Romeo v. Ford Motor Co., 2018 ONSC 6772 at para. 14. Here, the existence of a proposed settlement represents a strong argument that the preferable procedure criterion is met.

[12] The record also establishes that the proposed representative Plaintiff is appropriate to this role and is up to the task of representing the other class members. He apparently purchased tickets for an event taking place after March 11, 2020 which was postponed for more than 12 months and did not receive a refund or the option for a refund until the event was cancelled in January 2022.

[13] I am satisfied that the representative Plaintiff will fairly and adequately represent the class with respect to the common issue in this proceeding. There is no reason to think that he will not prosecute the action diligently and in the interest of the class.

[14] The Plaintiff and his counsel have produced a litigation plan that is appropriate to the continuation of the action and the proposed settlement. In addition, there is no indication that the proposed representative Plaintiff has any conflict of interest with the class members. The representative Plaintiff therefore meets all of the requirements in section 5(1)(e) of the CPA.

[15] As for Notices required to move forward with the settlement, the Plaintiff and counsel propose sending out email, website and long-form notices that will provide settlement class members with information about the litigation, settlement approval hearing and proposed method for distributing credits to eligible class members. These notices will be designed to inform settlement class members of the deadline and manner for opting out and submitting objections to the proposed settlement.

[16] The Plaintiff proposes disseminating the notices as follows:

(a) Class Members’ email addresses will be provided by the Defendants, who have access to and records of Class Members’ email;

(b) The Administrator will send the short-form notice directly to all class members via email;

(c) Class Counsel will post a similar notice on their website;

(d) The Long-Form Notice will also be posted on Class Counsel’s website, and the email and website notices will contain a direct link to the Long-Form Notice.

[17] The Opt-Out deadline has been set at 45 days and the Objection deadline at 55 days. Both of these deadlines provide sufficient time for class members to receive notice and consider whether to opt-out or object to the proposed settlement.

[18] I am also satisfied that the provision of direct notice to the class via email and indirect posting of the notices on class counsel’s website is satisfactory. This method of notice will provide notice to class members in a timely fashion in order for them to decide how to exercise their rights.

[19] The parties shall have an Order certifying this action as a class proceeding for the purpose of settlement and approving the notices of settlement approval.

Date: September 19, 2022

Morgan J.