COURT FILE NO.: CV-20-00648592-00CP

DATE: 20221128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MATTHEW HOY and JUSTIN STOREY

Plaintiffs

• and –

EXPEDIA GROUP INC., EXPEDIA CANADA CORPORATION, TRAVELSCAPE LLC, HOTELS.COM LP, HOTELS.COM GP, LLC, HRN 99 HOLDINGS LLP, TOUR EAST HOLIDAYS (CANADA) INC., TRIVAGO N.V., BOOKING HOLDINGS INC., BOOKING.COM B.V.

Defendants

Proceeding under the Class Proceedings Act, 1992

James Bunting, Sean Campbell, Carlos Sayao, and Theodore Milosevic for the Plaintiffs

Christopher Naudie, Adam Hirsh and David Williams for the Defendants Expedia Group, Inc., Expedia Canada Corporation, Travelscape LLC, Hotels.com LP, Hotels.com GP, LLC, and HRN 99 Holdings, LLP

Byron Shaw, Nikiforos Iatrou and Gabrielle Schachter for the Defendant Trivago N.V.

Rob Kwinter, Nicole Henderson and Joe McGrade for the Defendant Booking Holdings Inc. and Booking.com B.V.

HEARD: September 20, 21, 22, and 23, 2022.

PERELL, J.

A. Introduction. 3

B. Overview.. 4

C. Particulars of the Proposed Class Action. 6

D. Procedural and Evidentiary Background. 15

E. Facts. 16

1. Parties. 16

2. The Defendants and the Accommodation Booking Industry. 17

3. The Operation of Online Travel Agencies. 17

4. The Operation of Aggregators. 20

5. Miscellaneous Facts. 21

6. The Plaintiffs’ and the Class Members’ Grievances. 23

7. The Harm Caused by the Defendants’ Impugned Business Practices. 24

(a) The Evidence of Harm.. 24

(b) Economic Harm and Compensable Harm.. 26

F. Certification: General Principles. 28

G. Cause of Action Criterion. 29

1. General Principles. 29

2. Competition Act 31

3. Unjust Enrichment 34

4. The Consumer Protection Claims for British Columbia, Saskatchewan, Ontario, Québec, New Brunswick, Nova Scotia, Yukon, the Northwest Territories, and Nunavut 36

5. The Statutory Consumer Protection Claims against the Online Travel Agencies. 38

6. The Consumer Protection Statutory Claim for Punitive Damages. 43

7. Restitutionary Damages, Nominal Damages, and the Disgorgement Remedy under the General Law of Damages. 47

8. The Consumer Protection Claims against Trivago N.V. 53

H. The Compensatory Injury Principle. 54

I. Identifiable Class Criterion. 58

1. General Principles. 58

2. Discussion and Analysis – Identifiable Class Criterion. 59

J. Common Issues Criterion. 65

1. General Principles. 65

2. Discussion and Analysis – Common Issues Criterion. 66

(a) Punitive Damages as a Common Issue. 66

(b) Aggregate Damages as a Common Issue. 67

K. Preferable Procedure Criterion. 68

1. General Principles. 68

2. Discussion and Analysis – Preferable Procedure Criterion. 69

L. Representative Plaintiff Criterion (s. 5 (1)(e)) 70

1. General Principles – Representative Plaintiff Criterion. 70

2. Discussion and Analysis – Representative Plaintiff Criterion. 71

M. Conclusion. 71

REASONS FOR DECISION

[S]carce judicial resources may be squandered when difficult questions of law are continually side-stepped in the class action context. Certainly, the Hunt v. Carey test is an easy one to meet, but it is not surmounted in all cases. […] it is likely to be beneficial to all concerned, including the justice system, if such questions are directly addressed when raised at an early stage, rather than left for a trial that may never take place, or for another court in another case. [Wakelam v. Johnson & Johnson, 2014 BCCA 36 at para. 64, leave to appeal to the S.C.C. ref’d [2014] S.C.C.A. No. 125 per Newbury, J.A.].

…. It is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings. This is because such claims present "no legal justification for a protracted and expensive trial" (Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, at para. 19). If a court would not recognize a novel claim when the facts as pleaded are taken to be true, the claim is plainly doomed to fail and should be struck. In making this determination, it is not uncommon for courts to resolve complex questions of law and policy … [Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at para. 19, per Brown, J.]

A. Introduction

[1] There was a time in this fair land when the railroad did not run.[1] There was also a time in this fair land when the Internet did not run. In those old times, when a person wished to travel and reserve a hotel room, he or she went to a travel agent. Now in this fair land, to find a hotel room, a person uses an Internet search engine on an Internet website to choose and to reserve a hotel room.

[2] In this proposed national class action under the Class Proceedings Act, 1992,[2] the Plaintiffs Matthew Hoy and Justin Storey sue the operators of the travel websites of: (a) expedia.ca; (b) travelocity.ca; (c) ca.hotels.com. (d) booking.com; and (e) trivago.ca.

[3] The Plaintiffs allege that the Defendants, who are the operators of these websites, have contravened the Competition Act.[3] In their primary and predominant allegation, the Plaintiffs allege that the Defendants have contravened Ontario’s Consumer Protection Act, 2002,[4] or the “Equivalent Consumer Protection Legislation” of British Columbia, Alberta, Saskatchewan, Manitoba, Québec, Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland and Labrador, Yukon, Northwest Territories, and Nunavut.[5] The Plaintiffs also allege that the Defendants have been unjustly enriched.

[4] The Plaintiffs move to certify their action as a class proceeding.

[5] The Defendants dispute that any of the certification criteria are satisfied. And the Defendants assert that the Plaintiffs’ action should not be certified because the Plaintiffs have not demonstrated that there is some basis in fact that any Class Member experienced a compensatory harm from the Defendants’ alleged misconduct.

[6] For the reasons that follow, I dismiss the Plaintiffs’ certification motion.

B. Overview

[7] As these lengthy Reasons for Decision will reveal, the Plaintiffs advance a strategic, complex national class action that relies on a federal competition law statute and on thirteen provincial and territorial consumer protection statutes.

[8] The core factual background to the complex action is that at no charge to the consumer/travellers who are the putative Class Members, the Defendants gather information from “Accommodation Providers”, and the Defendants provide Internet search engines to the putative Class Members allowing them to sort and to review the information. The search engines use algorithms to sort the information in response to the putative Class Members’ inquiries. The Plaintiffs allege that the search results are false and misleading and that the Defendants have contravened the Competition Act and Ontario’s Consumer Protection Act, 2002, or the “Equivalent Consumer Protection Legislation” of the other provinces or territories across Canada that provide remedies for false and misleading representations and for improper business practices. The Plaintiffs also allege that the Defendants are unjustly enriched.

[9] The Plaintiffs do not allege that there was anything deficient about the accommodation chosen by the putative Class Members after they used the Defendants’ search engines. The Plaintiffs do not allege that the putative Class Members did not get good value for the accommodation that they did choose. Rather, the Plaintiffs proffer expert evidence, and they argue that the putative Class Members have been harmed because they have been dissuaded from choosing accommodations of the same quality that was less expensive, a better bargain, or better suited to the putative Class Member’s needs than the accommodation that he or she booked after using the Defendants’ search engines.

[10] The legal theory of the Plaintiffs’ case is to assert that the putative Class Member’s misapprehension about the search results and the resulting disappointment from not choosing other accommodation is a type of injury that counts for compensatory harm. The Plaintiffs, however, do not seek compensatory damages; rather, they submit that they and the putative Class Members are entitled to a restitutionary remedy, nominal damages, punitive damages, or the remedy of disgorgement.

[11] Although the Plaintiffs persist in asserting that the Defendants did cause harm that would call for compensatory damages, the Plaintiffs submit that for the purposes of the class action, the court need only be satisfied that the Defendants engaged in one or more of the alleged unfair practices, and then it is open to the court to craft any remedy available at common law or equity or by statute.

[12] The plaintiffs do not seek compensatory damages from the court. Although the Plaintiffs assert that there is compensatory harm, they concede that the injuries are idiosyncratically experienced, and so, strategically, instead of seeking the remedy of compensable damages, the Plaintiffs seek surrogate or alternative remedies that might be available on a class-wide basis without an individual issues trial. Rather than proving compensable harm, the Plaintiffs assert that since there is some basis in fact that the Defendants have breached the statutory causes of action, this unlocks the availability of remedies which would include: (a) damages for compensatory harm - which are not being claimed; (b) restitution (unjust enrichment); (c) nominal damages; (d) punitive damages; or (e) disgorgement - all of which are being claimed.

[13] It is a fundamental component of the theory of their case that the Plaintiffs assert that reliance and compensatory damages are not a constituent element of the statutory causes of action, and therefore the putative Class Members need not quantify their compensable harm, which would be an individual issues determination. Rather than proving and quantifying compensatory damages, the Plaintiffs assert that the Defendants are liable per se for their respective breaches of the consumer protection statutes without proving that the putative Class Members relied on the information provided by the Defendants and without the putative Class Members even knowing that the Defendants had breached the statutes and without the putative Class Members needing to prove or quantify the compensable harm they now know they have suffered.

[14] In application, the theory of the Plaintiffs’ case for their proposed class action avoids the need for individual issues assessments, which would be impossible to calculate, given that the state of affairs at the time of the search results was not memorialized and cannot be replicated. With the passage of time, it would only be guesswork as to whether there was alternative accommodation that would better satisfy the putative Class Members than the accommodation they did select. The Plaintiffs assert that unlike the idiosyncratic compensatory damages - that are not being claimed - the types of damages that are being claimed are class-wide and can be awarded as aggregated damages. The disgorgement remedy would be in whole or in part the Defendants’ profits or the commissions that the Defendants respectively received from their misrepresentations and their allegedly unlawful business practices.

[15] The Plaintiffs submit that their theory of the case satisfies all of the certification criterion, including the preferable procedure criterion. The Plaintiffs submit that the preferable procedure criterion is satisfied because the aggregate damages award provides access to justice, behaviour modification, and judicial economy and the action is manageable without individual issues trials.

[16] However, as I shall explain in more detail below, this complex and strategic theory of the case is fallacious, and the complex and strategic design of the class action is deficient to satisfy the certification criteria. For sometimes different reasons than advanced by the Defendants, in my opinion, the Plaintiffs do not satisfy any of the certification criterion. By way of outline, the Plaintiffs’ case is not certifiable for the following reasons, which are detailed later in these Reasons for Decision.

1. The cause of action criterion for contravention of the Competition Act is not satisfied for any of the putative Class Members.

2. The cause of action criterion for unjust enrichment is not satisfied for any of the putative Class Members.

3. The cause of action criterion for the Equivalent Consumer Protection Legislation is not satisfied for the Class Members from British Columbia, Saskatchewan, Québec, New Brunswick, Nova Scotia, Yukon, the Northwest Territories, and Nunavut. It is not satisfied because the Plaintiffs have not properly pled consumer protection causes of action for these eight provinces and territories.

4. The cause of action criterion for the consumer protection claims is not satisfied for the putative Class Members from all of Canada’s thirteen provinces and territories because: (a) the Plaintiffs are seeking remedies that are not available under the consumer protection legislation; and (b) it is plain and obvious that the remedy of disgorgement would not be available at common law or equity for breaches of the consumer protection legislation.

5. A cause of action for just punitive damages could be satisfied under the consumer protection statutes from across the country; however, in the circumstances of the immediate case, this claim for a remedy is not certifiable because it is plain and obvious that the pleadings do not satisfy the cause of action criterion for the remedy of punitive damages under the consumer protection statutes. Moreover, the common issues criterion and the preferable procedure criterion would not be satisfied for the remedy of punitive damages.

6. There is no viable consumer protection claim against Trivago N.V. for the putative Class Members from British Columbia, Alberta, Saskatchewan, Ontario, Prince Edward Island, Newfoundland and Labrador, Northwest Territories, and Nunavut.

7. The proposed class action is not certifiable because there is no basis in fact that two of more putative Class Members suffered compensatory harm; being dissuaded from choosing more psychologically-economically satisfying accommodation is not a type of compensatory harm.

8. If there were certifiable causes of action, the class definition would require amendment to be shortened to reflect the applicable basic limitation periods.

9. In any event, the common issues questions for aggregate and punitive damages are not certifiable as common issues.

10. Because the cause of action criterion is not satisfied or because of the aforesaid problems with respect to compensatory harm or available remedies, none of the other certification criterion are capable of being satisfied. If there were certifiable causes of action, the preferable procedure criterion would not be satisfied because a regulatory proceeding is preferable.

C. Particulars of the Proposed Class Action

[17] On September 30, 2020, Matthew Hoy and Justin Storey commenced their proposed class action. Proposed Class Counsel is Tyr LLP, a Toronto law firm.

[18] The proposed class action is against: (a) Expedia Inc.; (b) Expedia Group, Inc.; (c) Expedia Canada Corporation; (d) Travelscape LLC, (e) Hotels.com LP; (f) Hotels.com GP, LLC; (g) HRN 99 Holdings LLP; (h) Tour East Holidays (Canada) Inc.; (i) Booking Holdings Inc.; (j) Booking.com B.V.; and (k) Trivago N.V.

[19] During the course of the certification hearing Expedia Inc., which is a necessary party, was joined as a defendant without opposition. Order accordingly.

[20] Some of the joined Defendants are superfluous and for the purposes of this certification motion and the action, the Defendants can be collectively grouped as: (a) “Expedia”; (b) “Bookings” and (c) “Trivago N.V.”.

[21] Osler, Hoskin & Harcourt LLP is counsel for the Defendants: (a) Expedia Inc.; (b) Expedia Group, Inc. (c) Expedia Canada Corporation: (d) Travelscape LLC; (e) Hotels.com LP; (f) Hotels.com GP, LLC; and (g) HRN 99 Holdings, LLP, collectively “Expedia”.

[22] Blake, Cassels & Graydon LLP is counsel for the Defendants (a) Booking Holdings Inc. and (b) Booking.com B.V., collectively “Bookings”.

[23] McCarthy Tetrault LLP is counsel for the Defendant Trivago N.V.

[24] The proposed class definition is:

All individuals in Canada who between September 30, 2005 and the date that notice of certification is issued: (i) were referred to one of the OTA (Online Travel Agencies) Websites from Trivago and booked, purchased, and were charged for accommodation by that OTA Website for non-business purposes; or (ii) booked, purchased, and were charged for an accommodation reservation using one of the OTA Websites for non-business purposes.

[25] The “Class Period” is defined at paragraph 11 of the Statement of Claim as “between the date the Advertising Practice Claims began and the date this proceeding is certified.” The Plaintiffs proposed to revise the Class Period to the period between September 30, 2005 to the date of certification. The revised Class Period is commensurate with the ultimate limitation period of 15 years.

[26] The Plaintiffs allege that the Defendants: (a) have contravened Ontario’s Consumer Protection Act, 2002, or the “Equivalent Consumer Protection Legislation”; (b) have +contravened the Competition Act; and (c) have been unjustly enriched by sales revenues that they would not otherwise have received but for their misconduct.

[27] In their Statement of Claim, the Plaintiffs and Class Members claim:

a. a declaration that the Defendants engaged in unfair practices under the Consumer Protection Act, 2002, and Equivalent Consumer Protection Legislation or for compensatory damages;

b. a declaration that the Defendants have breached s. 52 of the Competition Act and for compensatory damages pursuant to s. 36 equal to the commissions received by the Defendants;

c. compensatory damages in the amount of $750 million pursuant to s. 18 of the Ontario Consumer Protection Act, 2002 and of similar provisions of Equivalent Consumer Protection Legislation because the return or restitution of the services purchased from the Defendants is no longer possible;

d. restitution and/or disgorgement damages equivalent to the monies wrongfully obtained by the Defendants on the grounds of unjust enrichment and/or waiver of tort;

e. nominal damages;

f. exemplary or punitive damages of $50 million;

g. aggregate damages, and/or an order under s. 25 of the Class Proceedings Act, 1992 directing individual hearings in respect of damages;

h. an order, to the extent necessary, waiving the notice provisions of the Consumer Protection Act, 2002 and of Equivalent Consumer Protection Legislation;

[28] The relevant provisions of the Competition Act are:

Recovery of damages

36 (1) Any person who has suffered loss or damage as a result of

(a) conduct that is contrary to any provision of Part VI, or

may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct or failed to comply with the order an amount equal to the loss or damage proved to have been suffered by him, together with any additional amount that the court may allow not exceeding the full cost to him of any investigation in connection with the matter and of proceedings under this section.

False or misleading representations

52 (1) No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.

Proof of certain matters not required

(1.1) For greater certainty, in establishing that subsection (1) was contravened, itis not necessary to prove that

(a) any person was deceived or misled;

(b) any member of the public to whom the representation was made was within Canada; or

(c) the representation was made in a place to which the public had access.

General impression to be considered

(4) In a prosecution for a contravention of this section, the general impression conveyed by a representation as well as its literal meaning shall be taken into account in determining whether or not the representation is false or misleading in a material respect.

[29] The relevant provisions of the Ontario Consumer Protection Act, 2002 are:

Interpretation

1 In this Act,

“consumer” means an individual acting for personal, family or household purposes and does not include a person who is acting for business purposes;

“consumer agreement” means an agreement between a supplier and a consumer in which,

(a) the supplier agrees to supply goods or services for payment, or

(b) […]

“consumer transaction” means any act or instance of conducting business or other dealings with a consumer, including a consumer agreement;

“representation” means a representation, claim, statement, offer, request or proposal that is or purports to be,

(a) made respecting or with a view to the supplying of goods or services to consumers, or

(b) […]

“supplier” means a person who is in the business of selling, leasing or trading in goods or services or is otherwise in the business of supplying goods or services, including the supply of rewards points, and includes an agent of the supplier and a person who holds themself out to be a supplier or an agent of the supplier;

False, misleading or deceptive representation

14 (1) It is an unfair practice for a person to make a false, misleading or deceptive representation.

Examples of false, misleading or deceptive representations

(2) Without limiting the generality of what constitutes a false, misleading or deceptive representation, the following are included as false, misleading or deceptive representations:

1. A representation that the goods or services have sponsorship, approval, performance characteristics, accessories, uses, ingredients, benefits or qualities they do not have.

2. A representation that the person who is to supply the goods or services has sponsorship, approval, status, affiliation or connection the person does not have.

3. A representation that the goods or services are of a particular standard, quality, grade, style or model, if they are not.

4. A representation that the goods or services are available for a reason that does not exist.

5. A representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed.

6. A representation that the goods or services or any part of them will be available or can be delivered or performed by a specified time when the person making the representation knows or ought to know they will not be available or cannot be delivered or performed by the specified time.

7. A representation that a service, part, replacement or repair is needed or advisable, if it is not.

8. A representation that a specific price advantage exists, if it does not.

9. A representation that the transaction involves or does not involves rights, remedies or obligations if the representation is false, misleading or deceptive.

10. A representation using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if such use or failure deceives or tends to deceive.

11. A representation that misrepresents the purpose or intent of any solicitation of or any communication with a consumer.

12. A representation that misrepresents the purpose of any charge or proposed charge.

13. A representation that misrepresents or exaggerates the benefits that are likely to flow to a consumer if the consumer helps a person obtain new or potential customers.

Unconscionable representation

15 (1) It is an unfair practice to make an unconscionable representation.

Same

(2) Without limiting the generality of what may be taken into account in determining whether a representation is unconscionable, there may be taken into account that the person making the representation or the person’s employer or principal knows or ought to know,

(a) that the consumer is not reasonably able to protect his or her interests because of disability, ignorance, illiteracy, inability to understand the language of an agreement or similar factors;

(b) that the price grossly exceeds the price at which similar goods or services are readily available to like consumers;

(c) that the consumer is unable to receive a substantial benefit from the subject-matter of the representation;

(d) that there is no reasonable probability of payment of the obligation in full by the consumer; (e) that the consumer transaction is excessively one-sided in favour of someone other than the consumer;

(f) that the terms of the consumer transaction are so adverse to the consumer as to be inequitable;

(g) that a statement of opinion is misleading and the consumer is likely to rely on it to his or her detriment; or

(h) that the consumer is being subjected to undue pressure to enter into a consumer transaction.

Unfair practices prohibited

17 (1) No person shall engage in an unfair practice.

One act deemed practice

(2) A person who performs one act referred to in section 14, 15 or 16 shall be deemed to be engaging in an unfair practice.

Advertising excepted

(3) It is not an unfair practice for a person, on behalf of another person, to print, publish, distribute, broadcast or telecast a representation that the person accepted in good faith for printing, publishing, distributing, broadcasting or telecasting in the ordinary course of business.

Rescinding agreement

18 (1) Any agreement, whether written, oral or implied, entered into by a consumer after or while a person has engaged in an unfair practice may be rescinded by the consumer and the consumer is entitled to any remedy that is available in law, including damages.

Remedy if rescission not possible

(2) A consumer is entitled to recover the amount by which the consumer’s payment under the agreement exceeds the value that the goods or services have to the consumer or to recover damages, or both, if rescission of the agreement under subsection (1) is not possible,

(a) because the return or restitution of the goods or services is no longer possible; or

(b) because rescission would deprive a third party of a right in the subject-matter of the agreement that the third party has acquired in good faith and for value.

Notice

(3) A consumer must give notice within one year after entering into the agreement if,

(a) the consumer seeks to rescind an agreement under subsection (1); or

(b) the consumer seeks recovery under subsection (2), if rescission is not possible.

Commencement of an action

(8) If a consumer has delivered notice and has not received a satisfactory response within the prescribed period, the consumer may commence an action.

Same

(9) If a consumer has a right to commence an action under this section, the consumer may commence the action in the Superior Court of Justice.

Evidence

(10) In the trial of an issue under this section, oral evidence respecting an unfair practice is admissible despite the existence of a written agreement and despite the fact that the evidence pertains to a representation in respect of a term, condition or undertaking that is or is not provided for in the agreement.

Exemplary damages

(11) A court may award exemplary or punitive damages in addition to any other remedy in an action commenced under this section.

Liability

(12) Each person who engaged in an unfair practice is liable jointly and severally with the person who entered into the agreement with the consumer for any amount to which the consumer is entitled under this section.

Limited liability of assignee

(13) If an agreement to which subsection (1) or (2) applies has been assigned or if any right to payment under such an agreement has been assigned, the liability of the person to whom it has been assigned is limited to the amount paid to that person by the consumer.

Effect of rescission

(14) When a consumer rescinds an agreement under subsection (1), such rescission operates to cancel, as if they never existed,

(a) the agreement;

(b) all related agreements;

(c) all guarantees given in respect of money payable under the agreement;

(d) all security given by the consumer or a guarantor in respect of money payable under the agreement; and

(e) all credit agreements, as defined in Part VII, and other payment instruments, including promissory notes,

(i) extended, arranged or facilitated by the person with whom the consumer reached the agreement, or

(ii) otherwise related to the agreement.

Waiver of notice

(15) If a consumer is required to give notice under this Part in order to obtain a remedy, a court may disregard the requirement to give the notice or any requirement relating to the notice if it is in the interest of justice to do so.

Offences

116 (1) A person is guilty of an offence if the person,

(a) fails to comply with any order, direction or other requirement under this Act; or

(b) contravenes or fails to comply with,

(i) […]

(ii) in respect of Part III, Unfair Practices, subsection 17 (1),

(iii) […]

Penalties

(5) An individual who is convicted of an offence under this Act is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years less a day, or both, and a corporation that is convicted of an offence under this Act is liable to a fine of not more than $250,000.

Limitation

(6) No proceeding under this section shall be commenced more than two years after the facts upon which the proceeding is based first came to the knowledge of the Director.

Orders for compensation, restitution

117 If a person is convicted of an offence under this Act, the court making the conviction may, in addition to any other penalty, order the person convicted to pay compensation or make restitution.

Action in Superior Court of Justice

100 (1) If a consumer has a right to commence an action under this Act, the consumer may commence the action in the Superior Court of Justice.

Judgment

(2) If a consumer is successful in an action, unless in the circumstances it would be inequitable to do so, the court shall order that the consumer recover,

(a) the full payment to which he or she is entitled under this Act; and

(b) all goods delivered under a trade-in arrangement or an amount equal to the trade-in allowance.

Same

(3) In addition to an order under subsection (2), the court may order exemplary or punitive damages or such other relief as the court considers proper.

Waiver of notice

101 If a consumer is required to give notice under this Act in order to obtain a remedy, a court may disregard the requirement to give the notice or any requirement relating to the notice if it is in the interest of justice to do so.

[30] The Plaintiffs propose the following common issues:

Consumer Protection

1. Does the Consumer Protection Act, 2002, or the Equivalent Consumer Protection Legislation (as defined in the Statement of Claim) apply to the Defendants? If so, to which Defendants?

2. Did the Defendants, or any of them, engage in unfair practices within the meaning of the Consumer Protection Act, 2002 or the Equivalent Consumer Protection Legislation?

3. If so, are the Class members, or any of them, entitled to damages under the Consumer Protection Act, 2002 or the Equivalent Consumer Protection Legislation?

4. Is it in the interests of justice to disregard the requirement to give notice that a consumer seeks to recover damages under the Consumer Protection Act, 2002 or the Equivalent Consumer Protection Legislation?

Competition Act

5. Did the Defendants, or any of them, engage in conduct contrary to s. 52 of the Competition Act?

6. If so, are the Defendants, or any of them, liable to the Class Members for loss or damage suffered, investigation costs, and/or costs of this proceeding under s. 36 (1) of the Competition Act?

Unjust Enrichment

7. Were the Defendants, or any of them, unjustly enriched from the Advertising Practices?

8. If so, did the Class members suffer a corresponding deprivation?

9. If so, is there a juristic reason for the Defendants’ enrichment?

10. If so, are the Class Members entitled to restitution on the basis of unjust enrichment?

Aggregate Monetary Relief

11. If common issues 3 and/or 6 are answered in the affirmative, can the amount of loss or damages suffered by the Class Members be determined on an aggregate basis, and if so, in what amount?

12. If common issue 10 is answered in the affirmative, can the amount of restitutionary relief or disgorgement to which the Class Members are entitled be determined on an aggregate basis, and if so, in what amount?

13. Are the Defendants, or any of them, liable to pay punitive damages to the Class Members, having regard to the nature of their conduct, and if so, what is the amount of punitive damages?

14. Are the Defendants, or any of them, liable to pay nominal damages to the Class Members, having regard to the nature of their conduct, and if so, what is the amount of nominal damages?

D. Procedural and Evidentiary Background

[31] On May 7, 2021, the Plaintiffs delivered their Motion Record for the certification motion. The Plaintiffs supported their motion with the following evidence:

a. Affidavit of Sandy Ballott dated May 7, 2021. Ms. Ballot is a law clerk of Tyr LLP, proposed Class Counsel.

b. Affidavit of Charlotte Duke dated March 10, 2022. Dr. Duke of London, England, is a partner of London Economics Limited, a consultancy providing bespoke economic analysis. She was retained to provide opinion evidence with respect to the Defendants’ pleading that the Class Members suffered no harm as a result of the allegations in their Statements of Defence. She has a PhD in economics from Melbourne University. She was cross-examined.

c. Affidavit of Matthew Hoy dated May 7, 2021. Mr. Hoy is a proposed Representative Plaintiff. He was not cross-examined.

d. Affidavits of Ariel Pohoryles dated May 5, 2021 and March 14, 2022. Mr. Pohoryles of Toronto, Ontario, is a director of Keyrus Canada Inc., a member of a global information technology group. He has a B.Sc. from Ben Gurion University in Industrial Engineering & Management. He was retained to provide a description of how to analyze the representations on the Defendants’ websites concerning the “Search Result Representation”, the “Discount Representation”, and the “Urgency Representation”. He was cross-examined.

e. Affidavit of Peter Steger dated May 6, 2021. Mr. Steger of Toronto, Ontario is a chartered accountant, professional accountant, business valuator. He is certified in forensic financing. He was retained to identify a methodology for determining aggregate damages for the Class Members during the Class Period. He was cross-examined.

f. Affidavit of Justin Storey dated May 7, 2021. Mr. Storey is a proposed Representative Plaintiff. He was not cross-examined.

[32] On February 11, 2022, the Defendants delivered their Joint Responding Motion Record to the Certification motion and Trivago N.V. delivered an additional Responding Motion Record. The Defendants supported their opposition to certification with the following evidentiary record:

a. Affidavit of Matt Esler dated February 11, 2022. Mr. Esler of Chicago, Illinois is the Senior Director of Products, Lodging at Expedia, Inc. He was cross-examined.

[33] In August 2022, Trivago N.V. delivered a Supplementary Record. In addition to relying on the joint Responding Motion Record, Trivago N.V. supported their opposition to the certification with the following evidentiary record:

a. Affidavit of Virginia Fletcher dated August 31, 2022. Ms. Fletcher of Oakville, Ontario is a litigation clerk at McCarthy Tetrault LLP, lawyers for Trivago N.V.

b. Affidavit of Alexander Forstbach dated February 8, 2022. Mr. Forstbach of Dusseldorf, Germany is the Chief Data Officer of Trivago N.V. He was cross-examined.

[34] On September 2, 2022, Bookings delivered its Responding Motion Record. It supported its opposition to certification with the following evidentiary record:

a. Affidavit of Tamir Lahav dated February 16, 2022. Ms. Lahav of Tel Aviv, Israel is Senior Product Manager of Booking.com B.V. in the central machine learning department. She was cross-examined.

b. Affidavit of Fabrizio Salzano dated February 16, 2022. Mr. Salzano of Amsterdam, Netherlands is the Director of Product – Room Selection of Booking.com B.V. He was cross-examined.

c. Affidavit of Hielke van Trommel dated February 16, 2022. Mr. van Trommel of Amsterdam, Netherlands is the Director of Product Marketing of Booking.com B.V. responsible for price merchandising. He was cross-examined.

E. Facts

1. Parties

[35] Expedia Group, Inc. is a travel technology company incorporated in Delaware. It is the corporate parent of Expedia, Inc., a corporation incorporated in the state of Washington. Expedia, Inc. owns: (a) HRN 99 Holdings, LLC, a limited liability corporation incorporated in New York; (b) Hotels.com GP, LLC, a limited liability corporation incorporated in Texas., which, in turn, owns Hotels.com LP, a limited liability partnership in Texas; and (c) Expedia Canada Corporation, a Canadian corporation. Tour East Holidays (Canada) Inc. is a representative of the Expedia Group in Québec. It is a travel agent licensee in Québec in accordance with the Travel Agents Act.[6] Expedia, Inc. operates websites and associated Apps for expedia.ca, travelocity.ca, and ca.hotels.com, the last of which is owned by Hotels.com LP.

[36] Booking Holdings Inc. is a Delaware corporation. Its subsidiary is Booking.com B.V., which is a Dutch limited-liability company with its principal place of business in Amsterdam, the Netherlands. Booking.com operates a website and an App called booking.com, which offers booking services for accommodation, transportation, and tourism around the world. Booking.com B.V. operates booking.com.

[37] Expedia and Bookings are OTAs, “Online Travel Agents.”

[38] Trivago N.V. is a company based in Dusseldorf, Germany. It operates an online hotel metasearch platform with a website and associated App that allows users to search for, compare, and reserve hotel rooms through online travel accommodation partners, which include the Expedia websites. Metasearch website providers can be labelled “Aggregators”. As of December 31, 2019, Expedia Group owned approximately 59.3% of Trivago N.V. Trivago N.V. operates trivago.ca.

[39] Mathew Hoy and Justin Storey are police officers residing and working in Toronto, Ontario.

[40] Between March 2018 and March 2020, Mr. Hoy used the Expedia website at least seven times for accommodation reservations.

[41] Over the past decade, Mr. Storey used the Expedia website and the Bookings website to make accommodation reservations, and he used the Trivago N.V. website to be referred to the Expedia and Bookings websites to make accommodation reservations. Mr. Storey pleads that he used Trivago N.V. for price comparison purposes, but there is no direct evidence that he used Trivago N.V. to be directed to an Accommodation Provider. That said, there is some basis in fact to infer that he made a booking that started with Trivago N.V.

[42] There is no evidence as to how precisely Mr. Hoy or Mr. Storey were harmed by their use of the Defendants’ data search engines. There is no evidence of any dissatisfaction with the hotel accommodation that they received from the Accommodation Providers. There is no evidence from Mr. Hoy or Mr. Storey about missing available preferable accommodation or why that accommodation would be preferable to the accommodation they did receive after their use of the Defendants’ websites or Apps. There is no evidence that they individually suffered psychological-economic harm from missing an opportunity to have comparable accommodation at a lesser price or from missing an opportunity to have comparable accommodation that was better suited to their respective needs than the accommodation that they respectively booked. There is no evidence as to how much damages they respectively suffered or how to precisely calculate any compensatory damages for them for the injuries they individually suffered from using the Defendants’ websites or Apps. The Representative Plaintiffs fall in with their fellow putative Class Members to claim restitutionary damages, nominal damages, punitive damages, and or disgorgement damages. They also claim that the Defendants have been unjustly enriched.

2. The Defendants and the Accommodation Booking Industry

[43] There are thousands of independent hoteliers and innkeepers and dozens of international chains operating hotels, motels, resorts, inns etc. They collectively can be labelled “Accommodation Providers”.

[44] Travellers can gather information and arrange accommodation with the Accommodation Providers directly. Travellers can gather information and arrange accommodation by retaining professional travel agents. Travellers can gather information and arrange accommodation by using the Internet to deal directly with the Accommodation Providers or with professional travel agents. Travellers can gather information and arrange accommodation by using the Internet to use Online Travel Agents (“OTAs”), such as the Defendants Expedia and Bookings. Travellers can also gather information and arrange accommodation using a metasearch website provider such as the website operated by Trivago N.V.

3. The Operation of Online Travel Agencies

[45] Expedia and Bookings operate as OTAs in the following fashion.

[46] The OTA does not operate any hotels etc. It is not an Accommodation Provider.

[47] The OTA develops proprietary internet software for websites. The software is used to gather information from Accommodation Providers. The Accommodation Providers enter into contractual arrangements with the OTAs, pursuant to which the Accommodation Provider provides content (information) to the OTA’s website. The information is about offers of accommodations, including information about location, types of accommodation, facilities, amenities, rental rates, and availability. Some Accommodation Providers upload the information manually. A majority of hotels upload information on a real-time basis through automated processes such as Application Program Interfaces (“APIs”). The Defendants’ search engines are dynamic in real time and the information is continuously changing.

[48] The OTA relies on the Accommodation Providers for the accuracy of the information. Accommodation Providers are not required to provide information about their entire inventory of accommodations. They are at liberty to offer accommodation directly or through their own or other distribution channels. The OTA is able to obtain preferred rates for accommodation from certain Accommodation Providers.

[49] The software has algorithms that may be used for searches and reports about the information provided by the Accommodation Providers. The consumer/traveller enters into a contract with the OTA to conduct searches on the OTA’s website without charge.

[50] To conduct searches, the software allows the traveller to select search criteria including location, hotel quality, room type, hotel rating. Additional details are available on the report for each hotel. The search criteria and the nature of the search results can be varied. For example, on Expedia.ca, travellers can sort the results based on, among other things, Recommended, Price, Guest Rating, and Star Rating. For example, on Booking.com, the sorting options include price (lowest price first), homes & apartments first, star rating (highest or lowest first), distance from city centre, downtown, best reviewed & lowest price, genius discounts first, or top reviewed ratings.

[51] If a traveller chooses not to refine the search results, the websites present the results according to a default search order that reflects the OTA’s recommendations. The default search is “Recommended” on Expedia and “Default Ranking” on Booking.

[52] In Expedia’s case, the Recommended search order is determined by complex algorithms that assign a score to each hotel’s offer based on the hotel’s “Offer Strength”, the hotel’s “Quality Score” and the compensation the hotel pays to Expedia. The hotel’s Offer Strength is an assessment of the quality of the offers, and includes considerations of rate competitiveness, the number and level of review scores and other factors. The hotel’s Quality Score is an assessment of the quality of the content that is displayed to travellers, including the number of photos and the quality of the hotel’s descriptions of its facilities and amenities. In the presentation of the results for Expedia, the commission operates as a “tiebreaker” in determining the relative ranking of similar offers. A hotel cannot “buy” its way to the top of a search result if it has a low Offer Strength or a low Quality Score.

[53] In Bookings’ case, the Default Ranking is generated by an algorithm that incorporates conversion parameters, pricing parameters, and commercial parameters. Customer conversion parameters reflect the proportion of customers who view a property that ultimately go on to complete a booking. The pricing parameters reflect that a lower priced accommodation is generally more appealing to a user. Accommodation Providers can subscribe to certain commercial programs offered by Bookings to increase their visibility in the Default Ranking. Membership in one of these programs may or may not ultimately lead to higher positioning in the Default Ranking, depending on the conversion and pricing parameters. The weight of each factor differs by date as well as by customer. In the presentation of the results for Bookings, the commission operates as a “tiebreaker” in determining the relative ranking of similar offers. A hotel cannot “buy” its way to the top of a search result if it has a low Offer Strength or a low Quality Score.

[54] Expedia displays or provides access to information about the nature of the search engines and the role played by commissions in determining the Default Ranking.

a. Expedia display a search order disclaimer that appears above all search results. As seen in the image below, Expedia states: “What we are paid impacts our sort order” and Hotels.com states “How much we get paid influences your sort order”:

b. On Expedia’s website, the consumer/traveller can click (activate) the search results for more information about the search parameters and how they are weighed.

c. Expedia’s website displays the following information which is also included in Expedia’s Terms of Use which are accessible from the webpage:

How we determine our sort order

As a traveller shopping on our site, you have many options to help you find the perfect, hotel flight, car rental, cruise, or activity. The Sort settings at the top of the page allow you to order search results to your preference, such as price, verified review score, and other criteria. In addition, the Filter settings allow you to include or exclude various options to suit your travel needs. If you select no specific Sort option, by default we will show you a range of relevant options in the search results, based on the following criteria:

Lodging

Our default sort order reflects the relevance of properties to your search criteria, as we want to make sure you are able to quickly and easily find the offer that is right for you. We measure relevance by taking into account such as a property’s location, its review scores, the popularity of the property (measured by how many travellers on our sites make bookings at the property), the quality or content provided by the property, and the competitiveness of the property’s rates and availability – all of which are relative to other properties meeting your chosen search criteria.

In addition, the compensation we earn when you book a property (and such booking is completed and not subsequently cancelled within any cancellation window) is one of the factors taken into consideration when determining the relative order of properties with similar offers in our search results listings. The compensation we earn recognizes the part we play in listing the property on our site, facilitating the booking and facilitating you stay at the property. Where we are displaying properties with a similar offer, then a booking from which we earn more compensation will feature higher in our search results listing compared to other properties with similar offers where we are paid less compensation on the booking.

[55] Bookings displays or provides access to information about the nature of the search engines and the role played by commissions in determining the Default Ranking.

a. Bookings utilizes symbols on specific offers with “hover-over” disclosure statements connected to each symbol. The disclaimers on the Booking.com platform state either:

This is a Preferred Partner property. It's committed to giving guests positive experiences with its excellent service and great value. This property might pay Booking.com a little more to be in this Program, or

This property spends a little extra to promote their visibility on our site. It matches your search criteria and is a great option for you.”

b. Bookings also discloses the role of compensation in rank ordering in section 8 of its Terms and Conditions, which state:

Booking.com has identified the following parameters to be most closely correlated with you finding a suitable Trip Provider and thus prioritizes these parameters in the algorithms (main parameters): Your personal search history, the rate of ‘click-through’ from the search page to the hotel page (‘CTR’), the number of bookings related to the number of visits to the Trip Provider page on the Platform (‘Conversion’), gross (including cancellations) and net (excluding cancellations) bookings of a Trip Provider. Conversion and CTR may be affected by various (stand-alone) factors including review scores (both aggregate scores and components), availability, policies, (competitive) pricing, quality of content and certain features of the Trip Provider. The commission percentage paid by the Trip Provider or other benefits to us (e.g., through commercial arrangements with the Trip Provider or strategic partners) may also impact the default ranking, as well as the Trip Provider’s record of on-time payment. The Trip Provider can also influence its ranking by participating in certain programs, which may be updated from time to time, such as the Genius program, deals, the Preferred Partner Program, and the visibility booster (the latter two involve the Trip Provider paying us a higher commission).

[56] If the consumer/traveller wishes to make a booking, he or she is directed by the OTA to a booking page where he or she is prompted to review the details of the booking, including the hotel rate and estimated applicable services fees and taxes. To complete his or her booking, the consumer/traveller must confirm that he or she has agreed to the Terms of Use associated with the use of the OTA’s website. The terms indicate the nature of the booking, the role of the OTA in the transaction, and the payment of commissions.

[57] If a traveller completes a hotel booking, the OTA receives a commission or payment from the Accommodation Provider. Under one model, the “agency model”, the consumer/traveller interacts directly with the Accommodation Provider and the Accommodation Provider bills the traveller directly. In the agency model, the OTA receives a commission. Under another model, the “merchant model” or “OTA collect model”, the consumer/traveller interacts with the OTA, and the OTA operates as merchant of record for the transaction. The OTA collects payment for the accommodation and remits it to the Accommodation Provider less a commission for the OTA.

4. The Operation of Aggregators

[58] Trivago N.V. operates as an Aggregator, not as an OTA. Although Trivago N.V. has contractual relationships with OTAs, it is not itself an OTA. Trivago N.V. provides a dynamic search engine that aggregates and displays accommodation offers on a near real-time basis from third-party travel agencies, OTAs, Accommodation Providers, and independent hotels. Trivago N.V. operates in the following fashion.

[59] Trivago N.V. does not reserve accommodation; rather, it refers consumer/travellers to other booking platforms. Users do not reserve accommodations through Trivago N.V.’s website. If a user selects an offer displayed on Trivago N.V. (a “click-out”), the user is redirected to the booking site where the accommodation selection process may begin anew.

[60] Trivago N.V. posts the information it receives from OTAs, third-party travel agencies, booking sites, Accommodation Providers, and independent hotels. Trivago N.V.’s website and Apps are dynamic in real time, and the information in the search engines is continuously changing. The consumer/traveller uses the metasearch device without charge. Trivago N.V. earns revenues on a “cost-per-click” basis, regardless of whether the user books accommodation. From October 2020 onward, some of Trivago N.V.’s partners provide Trivago N.V. with a commission on referrals to their platforms that result in a booking.

[61] In so far as Trivago N.V. has a contract for the use of its website, its terms of use state:

The [trivago] Platform is a hotel search engine that provides users with comparisons for different offers for hotel rooms. Trivago does not provide, own or control any of the hotel services and products that you can access through our Platform (the “Hotel Products”). The Hotel Products are owned, controlled or made available by third parties (the “Hotel Providers”), either directly (e.g., a hotel) or through a facilitator of hotel reservations (e.g., an online travel company). The Hotel Providers are responsible for the Hotel Products and all booking contracts, including for example trivago Express Bookings. The booking of a Hotel Product will solely be made with the Hotel Provider…. Your interaction with any Hotel Provider accessed through our Platform is at your own risk, and trivago does not have any responsibility should anything go wrong with your booking. trivago has no control over the Hotel Products or Hotel Providers.

The Hotel Providers are independent from trivago and are not agents or employees of trivago. trivago is not liable for the acts, errors, omissions, representations, warranties, breaches or negligence of any Hotel Provider, including for injuries, death, property damage, or other damages or expenses resulting therefrom. trivago will not be liable for any cancellation, overbooking, strike, force majeure or other causes beyond its direct control.

[62] On the Trivago N.V. website, the “Sort by” drop-down field has an information icon. If the consumer/traveller activates the icon, the chosen ranking method is explained in a hovering message. For example, the hover-over for “our recommendations” states:

The ranking results reflect your search criteria and our assessment of the attractiveness of the offer compared to other offers on our site. It also reflects the compensation paid by the booking site.

[63] On the Trivago N.V. website, the ranking results also link to the “How Trivago Works” page, which discloses the basis on which the “our recommendations” sort option is generated, and discloses the fact that compensation plays a role.

5. Miscellaneous Facts

[64] There are three somewhat disparate facts about the Defendants’ websites and the Defendants that are pertinent to this certification motion that should be noted. I describe these miscellaneous facts in this section of my Reasons for Decision.

[65] First, the Defendants’ conduct over a 15-year period is the subject matter of this proposed class action. The Plaintiffs’ proposed Class Period is the 15 years before the commencement of their action, which is the ultimate limitation period under Ontario’s Limitations Act, 2002.[7] The Plaintiffs submit that the reason there is an extended class period is that the Defendants have not disclosed when they configured their algorithms in the ways that misrepresent the search results and that constitute breaches of the Competition Act and of the consumer protection statutes across the country.

[66] Second, during the proposed Class Period, the functionality and the information provided on the Defendants’ websites and Apps was frequently revised and changed and the information provided by the Accommodation Providers is dynamically current information. The Defendants have continually changed the search presentation practices and the underlying algorithms that weigh the search criteria, both in respect of the nature and range of variables and the weight to be given to them. The Defendants continually create and test different versions of their websites for travellers, and thus from time to time there are experimental websites. Consumer/travellers in the same location may access the websites at the same time, but they may see different versions of the websites, and they may experience different layouts, displays, filters, and report presentation and outcomes. Given the dynamic and continually changing flow of information on the Defendants’ websites and Apps, it is impossible to recreate the circumstances at any moment in time over the proposed 15-year Class Period or even over a shorter Class Period.

[67] Third, the Defendants have been subject to regulatory action in Australia, the United Kingdom and the European Union.

a. In 2018, the UK Competition and Markets Authority brought enforcement action against hotel booking companies including the Expedia Group, Booking.com, and Trivago N.V. The Authority alleged that certain of their business practices violated UK consumer protection law through using misleading sales tactics and practices. Similar enforcement action was also taken by the European Commission against Expedia and Booking.com in 2019.

b. In February 2019, Expedia Group, Trivago, and Booking.com all entered into undertakings with the UK Competition and Markets Authority and the European Commission. Without an admission of wrongdoing, they undertook not to continue or repeat practices of concern to the regulatory authorities.

c. The Australian Competition and Consumer Commission commenced proceedings under Australian consumer protection legislation against Trivago. The Commission alleged that Trivago misled consumers since at least 2016 by its search result practices and because Trivago’s information about discounts compared rates at normal hotel rooms to luxury rooms, giving the impression that users were benefiting from discounts that did not exist. In January 2020, the Federal Court of Australia ordered Trivago to pay $44.7 million (AUD) for its practices found to be misleading.[8]

6. The Plaintiffs’ and the Class Members’ Grievances

[68] The Plaintiffs’ and Class Members’ complaint is that the Defendants present themselves as providing objective non-biased search results of the best available accommodation and bargains, but the Plaintiffs and the putative Class Members allege that the Defendants’ recommendations are false, unconscionable, and deceptive sales practices that contravene the misrepresentation provisions of the Competition Act and also the consumer protection statutes across the country. The Plaintiffs and the Class Members allege that the Defendants are unjustly enriched by their contraventions of the Competition Act and the consumer protection legislation.

[69] The Plaintiffs and Class Members allege that the unconscionable, misleading, and unfair sales practices are of three types.

[70] The first alleged to be illegal sales practice is the “Search Result Practice,” where the Defendants’ representation is that the search results are objective. This is illegal because the Defendants fail to disclose or fail to adequately disclose that the search results are generated in significant part based on the commissions earned from the Accommodation Providers.

[71] The second alleged to be illegal sales practice is the “Discount Practice,” where the Defendants represent that there are discounts that are not true discounts and where the Defendants present false and misleading price comparisons to encourage the Class Member to select accommodation from the Accommodation Providers that pay higher commissions to the Defendants.

[72] The third alleged to be illegal sales practice is the “Urgency Practice,” where the Defendants utilize false, misleading, and high pressure sales tactics to create a sense of urgency but where no such urgency actually exists.

[73] The gravamen of the Plaintiffs’ complaint is that the Defendants: (a) represented that the recommendations of accommodation generated by the consumer’s search results had the attribute of being objectively determined by that consumer’s search criteria when they were not (the Search Results Practice); (b) represented that “discounted” accommodations were of higher value than the offered price when they were not (the Discount Practice); and (c) represented that the accommodations had the attributes of scarcity and popularity when they did not (the Urgency Practice). The Plaintiffs allege that the search results about available accommodation had none of the attributes they were misrepresented to have: they were neither scarce, in high demand, discounted or of a higher value than the advertised price. Moreover, the search function - the key feature of the service provided by the Defendants - did not have the very attribute most important to consumers, namely responding to a consumer’s search criteria in an objective and unbiased manner.

[74] In so far as the Plaintiffs and the putative Class Members’ grievances are concerned, for the purpose of this certification motion, I conclude that:

a. Subject to the caveat that the Plaintiffs do not satisfy the cause of action criterion for a breach of the Competition Act, they have demonstrated that Expedia, Bookings, and Trivago N.V. respectively may have made a representation to the public that is false or misleading in a material respect.

b. The Plaintiffs have demonstrated: (a) some basis in fact that the Defendants Expedia and Bookings breached Ontario’s Consumer Protection Act, 2002 and the consumer protection acts of the other provinces and territories since at least 2014; and (b) some basis in fact from which it can be inferred that Expedia and Bookings breached Ontario’s Consumer Protection Act, 2002 and the consumer protection statutes of the other provinces and territories before 2014.

c. Had the consumer protection statutes applied to Trivago N.V., the Plaintiffs demonstrated: (a) some basis in fact that Trivago N.V. breached Ontario’s Consumer Protection Act, 2002 and the consumer protection acts of the other provinces and territories since at least 2014; and (b) some basis in fact from which it can be inferred that Trivago N.V. breached Ontario’s Consumer Protection Act, 2002 and the consumer protection statutes of the other provinces and territories before 2014.

7. The Harm Caused by the Defendants’ Impugned Business Practices

[75] In the preceding section of these Reasons for Decision, for the purposes of this certification motion, subject to several caveats, I have found some basis in fact for culpable wrongdoing by the Defendants under the Competition Act or under the consumer protection statutes from across the country. The Plaintiffs allege and proffer evidence that the Defendants’ impugned business practices cause harm. In this section of my reasons about the factual background, I discuss the nature of the harm alleged to have been suffered by the putative Class Members.

(a) The Evidence of Harm

[76] The Plaintiffs and the Class Members do not contend that the information received from the Accommodation Providers and from other sources that appears on the search results was incorrect information about the nature and pricing etc. for the accommodation. The Plaintiffs’ and the Class Members’ grievance is about the Defendants’ conduct with respect to the presentation of search results and the harm caused by the allegedly false, misleading, and unconscionable representations and business practices of the Defendants in presenting research result reports.

[77] Although the Plaintiffs are not ultimately seeking a judgment for compensatory damages, which would require individual trial assessments, the Plaintiffs assert that the Class Members have suffered compensatory harm from using the Defendants’ search engines. In their proposed class action, the Plaintiffs do not claim damages based on the Class Members having suffered a compensable harm. Rather, the Plaintiffs claim restitution, nominal damages, punitive damages, and disgorgement as the remedy for the Class Members’ having suffered a breach of the Competition Act and the consumer protection statutes from across the provinces and territories of Canada.

[78] From a factual perspective, the Plaintiffs’ argument that the putative Class Members suffered compensatory harm is based on the expert opinion of Dr. Duke, whose specialty is economic psychology, which is a cross-discipline of economics and psychology that studies the human behaviour that underlies decisions that affect economic behaviour.

[79] Dr. Duke opined that a hotel room’s perceived scarcity, popularity, and value as compared to a reference price are powerful motivators that encourage consumers to make a purchase they may not have otherwise made and consumers are harmed when these types of representation are false or misleading. It was Dr. Duke’s opinion that the disclosure practices where the Defendants provide information about their respective search engines do not prevent the putative Class Members from being harmed.

[80] In Dr. Duke’s opinion, the Defendants’ practices are likely to alter consumer behaviour, and this change of behaviour would result in consumer harm, assuming that alternative accommodation was available that met the consumer’s needs at lower cost, or better matched their preferences at the same cost. The essence of the harm identified by Dr. Duke is that consumers are deprived of the opportunity to identify alternative accommodations because they are coerced by the unfair practices to foreshorten a more comprehensive search process.

[81] It was Dr. Duke’s opinion that the Defendants’ representations and business practices adversely affected the Class Members’ decisions about choice of accommodation by causing them to select accommodation that: (a) had less satisfying amenities; (b) was more expensive than similarly suitable accommodation; (c) was less of an apparent bargain, than the accommodation that the Class Member might have chosen but for the representation or business practice. It is Dr. Duke’s opinion that consumers display a cognitive bias towards hotel offerings that rank near the top of search results rather than further down, regardless of whether offerings further down in the search results better suit their needs or meet their needs equally but at a lower price.

[82] The Defendants did not call an expert witness to contradict the expert evidence of Dr. Duke. Subject to the caveat that the harm is not a compensable harm from a legal perspective, the Plaintiffs have demonstrated some basis in fact that some of the putative Class Members would have suffered the harm described by the Plaintiffs’ expert Dr. Duke.

[83] I note that Dr. Duke’s notion of harm from preferable choices being missed is overwhelmingly idiosyncratic and subjective and depends on after-the-fact consumer perceptions and disappointment because of what might have been their accommodation if they had received differently ordered information.

[84] In my opinion, Dr. Duke’s report does not establish any systemic harm. The harm she describes is random not systemic. From the Plaintiffs’ submissions and Dr. Duke’s evidence, it seems that the harm caused by the Defendants’ search engines is the Internet’s version of information Russian Roulette because the harm would be caused by the spin of the search engine when and where by chance the putative Class Member: (a) did not change the default search results; (b) did not filter the default search results; (c) was not influenced by the Defendants’ disclosure of information about how the search engines organized data; (d) selected accommodation, the ranking of which had been tainted by the Defendant’s prior arrangement for a commission; and (d) there was an alternative choice that had (i) more satisfying amenities than the accommodation chosen, (ii) was less expensive than the accommodation chosen, or (iii) was more an apparent bargain than the accommodation chosen. Dr. Duke does not provide any factual basis to support her assumption that alternative accommodation was universally available that might better meet the class members’ needs at a lower cost, or better meet their pleasure and satisfaction preferences at the same cost. In some cases, there may have been no alternate accommodation available on the Defendant’s website, and thus no harm could have occurred regardless of whether the Defendant’s algorithms have the potential to misrepresent and mislead.

[85] In any event, the Plaintiffs do not purport to quantify the compensatory harm that they allege they and the putative Class Members suffered. There is no evidence the Plaintiffs or the Class Members did not receive the accommodation they booked. There is no evidence that the Plaintiffs or the Class Members received accommodation that was less in quality than promised. There is no evidence that in any particular case, or on a class-wide basis, that alternative qualitatively similar accommodations were available that would meet Class Members’ needs equally well at a lower cost, or that would better meet Class Members’ subjective needs. There was no explanation or evidence as to how to monetize this compensatory harm based on the Class Members’ disappointment in not choosing psychologically more satisfying accommodation.

[86] Dr. Duke’s evidence was not proffered as the basis on which the Plaintiffs sought to recover a remedy. There is no methodology for compensatory damages on a class-wide basis based on the compensatory harm opined by Dr. Duke. The Plaintiffs’ damages expert, Peter Steger, did not propose any methodology for quantifying the compensatory harm suffered by the Class Members individually or on a class-wide basis. Mr. Steger acknowledged that he had not developed or put forward any methodology that considered whether Class Members had suffered a financial loss as a result of the alleged advertising practices or making a booking through the Defendants’ websites. Mr. Steger just assumed that the putative Class Members were entitled to recovery of revenues or profits earned by the Defendants either on a restitutionary or disgorgement theory of compensation.

[87] In the discussion and analysis later in these Reasons for Decision, I will address the topic of the legal nature of the compensatory damages that the Plaintiffs submit were suffered by the Class Members but that are not being sought. From a factual perspective, I note that the harm allegedly suffered by Class Members is entirely idiosyncratic and is some form of emotional disappointment from not choosing different accommodation from otherwise satisfactory accommodation. There is no claim for damages for economic injury. There is no claim for damages for injury to person or property. There is no claim for damages for breach of contract. The Plaintiffs’ claim for the remedies of restitution, nominal damages, punitive damages and disgorgement look towards the Defendants’ gains.

(b) Economic Harm and Compensable Harm

[88] For understanding the discussion and the analysis later in these Reasons for Decision, it shall be important to keep in mind that the harm allegedly caused by the Defendants’ wrongdoing is of two types: (a) personal harm individually suffered by the putative Class Members as a result of the Defendants’ wrongdoing, which is the harm discussed in the immediately preceding part of this decision; and (b) economic harm, which is the topic of this part of my Reasons for Decision.

[89] The Plaintiffs allege that the Defendants’ business practices cause economic harm in the sense that the Defendants’ business practices cause injury to the fair operation of the marketplace and are anti-competitive and unfair competition. With respect to harm to the economy and the marketplace, the Plaintiffs rely on caselaw that has accepted that the harm identified by Dr. Duke can: (a) result in negative goodwill to merchants who advertise in a nondeceptive manner; (b) result in negative goodwill to the merchant who advertised in a deceptive manner if the consumer decrypts the deception; and (c) result in adverse effects on the pricing of goods and services.[9] The Plaintiffs also rely on caselaw that has accepted that the harm identified by Dr. Duke can: (d) threaten the existence of an efficient market in which consumers can participate confidently, which is one of the purposes of consumer protection legislation[10] and (e) cause damages because of an adverse impact on prices akin to the effect on ‘umbrella purchasers’ in price-fixing cases, where the impact of anti-competitive conduct is to drive up market prices for all products in the market, including products that are not directly the subject of anti-competitive conduct.[11]

[90] In the immediate case, however, compensatory damages for this type of economic harm, is not available to the putative Class Members because for the reasons set out below, the Plaintiffs fail to satisfy the cause of action criterion for a claim under the Competition Act. Moreover, as I shall now explain, there are problems of proof, in the immediate case in the Plaintiffs advancing a claim for economic damages.

[91] In Pro-Sys Consultants Ltd. v. Microsoft Corporation,[12] the Supreme Court of Canada held that in a proposed competition law class action, at the certification motion, the plaintiff need not establish the actual loss to the class; however, the plaintiff must demonstrate that there is a methodology capable of doing so, and the plaintiff must demonstrate that there is sufficient evidence available for use at trial to prove antitrust impact common to all the members of the class.

[92] In the case at bar, with respect to the harm to the economy, apart from relying on the cases where claims for damages for anti-competitive conduct have been certified, the Plaintiffs have provided no evidence of a methodology to quantify the damages to the economy. In the case at bar, the Plaintiffs have provided no evidence to prove that there is sufficient evidence to prove antitrust impact on all members of the class. Mr. Pohoryles deposed for the Plaintiffs that it is possible to determine what algorithms were used from time to time, but there is no methodology to determine what impact, if any, the unfair practices associated with the algorithms would have on the economy and no evidence that there would be sufficient evidence for that methodology. The Plaintiffs have provided no theory to explain why the pleaded damages for a breach of the Competition Act are equivalent to the commissions paid to the Defendants.

[93] Upon analysis, the Plaintiffs are not suing to recover damages for the harm caused to merchants who compete with the Defendants and the Plaintiffs are not suing for injuries to the economy. There is no claim for damages to the pricing of the hotel rooms or for damages for anti-competitive behaviour and no methodology for calculating damages is advanced for any of these type of damages. Upon analysis, the Plaintiffs do not advance a claim for damages to the economy akin to price fixing or provide a methodology to quantify that claim, and they rather have designed their class action to claim remedies for the harm personally suffered by the putative Class Members. This harm is allegedly caused by the alleged breaches of the consumer protection statutes, and it is this harm, not harm to the economy, that this class action is essentially about.

[94] In the immediate case the Plaintiffs are suing for the harm caused to the individual putative Class Members. In the case at bar, the harm caused to merchants, the economy and marketplace is relevant to such matters as whether the behaviour management aspect of the preferable procedure criterion is satisfied, but it is not relevant to whether the putative Class Members experienced a wrongdoing for which there is compensable harm or to whether the Class Members are entitled to a remedy in lieu of the remedies of recission and damages provided by the consumer protection legislation.

F. Certification: General Principles

[95] The court has no discretion and is required to certify an action as a class proceeding when the following five-part test in s. 5 of the Class Proceedings Act, 1992 is met: (1) the pleadings disclose a cause of action; (2) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (3) the claims of the class members raise common issues; (4) a class proceeding would be the preferable procedure for the resolution of the common issues; and (5) there is a representative plaintiff who: (a) would fairly and adequately represent the interests of the class; (b) 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 (c) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

[96] On a certification motion, the question is not whether the plaintiff's claims are likely to succeed on the merits, but whether the claims can appropriately be prosecuted as a class proceeding.[13] The test for certification is to be applied in a purposive and generous manner, to give effect to the goals of class actions; namely: (1) to provide access to justice for litigants; (2) to encourage behaviour modification; and (3) to promote the efficient use of judicial resources.[14]

[97] For certification, the plaintiff in a proposed class proceeding must show “some basis in fact” for each of the certification requirements, other than the requirement that the pleading discloses a cause of action.[15] The some-basis-in-fact standard sets a low evidentiary standard for plaintiffs, and a court should not resolve conflicting facts and evidence at the certification stage or opine on the strengths of the plaintiff’s case.[16] In particular, there must be a basis in the evidence to establish the existence of common issues.[17] To establish commonality, evidence that the alleged misconduct actually occurred is not required; rather, the necessary evidence goes only to establishing whether the questions are common to all the class members.[18]

[98] The some-basis-in-fact standard does not require evidence on a balance of probabilities and does not require that the court resolve conflicting facts and evidence at the certification stage and rather reflects the fact that at the certification stage the court is ill-equipped to resolve conflicts in the evidence or to engage in the finely calibrated assessments of evidentiary weight and that the certification stage does not involve an assessment of the merits of the claim and is not intended to be a pronouncement on the viability or strength of the action.[19]

[99] Although it has recently garnered renewed attention, it has been for a long time, and it continues to be a fundamental principle that for an action to be certified as a class proceeding there must be some evidence that two of more putative Class Members suffered compensatory harm.[20]

G. Cause of Action Criterion

1. General Principles

[100] The first criterion for certification is that the plaintiff's pleading discloses a cause of action.

[101] The “plain and obvious” test for disclosing a cause of action from Hunt v. Carey Canada,[21] is used to determine whether a proposed class proceeding discloses a cause of action for the purposes of s. 5(1)(a) of the Class Proceedings Act, 1992.[22] The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. To satisfy the first criterion for certification, a claim will be satisfactory, unless it has a radical defect, or it is plain and obvious that it could not succeed.[23]

[102] In R. v. Imperial Tobacco Canada Ltd.,[24] the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success. Chief Justice McLachlin stated:

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before McAlister (Donoghue) v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562 (U.K. H.L.) introduced a general duty of care to one’s neighbor premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (U.K. H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in McAlister (Donoghue) v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[103] In Atlantic Lottery Corp. Inc. v. Babstock,[25] the Supreme Court stated that the test applicable on a motion to strike is a high standard that calls on courts to read the claim as generously as possible because cases should, if possible, be disposed of on their merits based on the concrete evidence presented before judges at trial. However, Justice Brown stated that it is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings.[26] In the Ontario Court of Appeal's decision in Darmar Farms Inc. v. Syngenta Canada Inc.,[27] Justice Zarnett stated:

The fact that a claim is novel is not a sufficient reason to strike it. But the fact that a claim is novel is also not a sufficient reason to allow it to proceed; a novel claim must also be arguable. There must be a reasonable prospect that the claim will succeed.

[104] In a proposed class proceeding, in determining whether the pleading discloses a cause of action, no evidence is admissible, and the material facts pleaded are accepted as true, unless patently ridiculous or incapable of proof. The pleading is read generously, and it will be unsatisfactory only if it is plain, obvious, and beyond a reasonable doubt that the plaintiff cannot succeed.[28]

[105] Bare allegations and conclusory legal statements based on assumption or speculation are not material facts; they are incapable of proof and, therefore, they are not assumed to be true for the purposes of a motion to determine whether a legally viable cause of action has been pleaded.[29]

[106] Matters of law that are not fully settled should not be disposed of on a motion to strike an action for not disclosing a reasonable cause of action,[30] and the court's power to strike a claim is exercised only in the clearest cases.[31] The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff.[32] However, a novel claim must have some elements of a cause of action recognized in law and be a reasonably logical and arguable extension of established law.[33]

[107] A principle associated with the cause of action criterion of a certification motion that will be particularly important in the circumstances of the immediate case, is the principle that the plaintiffs must establish that the remedies they seek for their pleaded causes of action are available to them, assuming the truth of their pleadings.[34]

2. Competition Act

[108] The substantive law basis for the Plaintiffs’ Competition Act claim is set out in paragraphs 95 to 98 of the Statement of Claim as follows:

H. BREACH OF THE COMPETITION ACT

95. The Advertising Practice Claims are false or misleading in a material respect, based on their literal meaning, the general impression conveyed by the claims and the omissions, including for the reasons described above.

96. In making the Advertising Practice Claims to Mr. Hoy, Mr. Storey, the Class members, and the public during the Class Period, the Defendants breached s. 52 of the Competition Act because the Advertising Practice Claims were and continue to be:

(a) false and misleading in a material respect;

(b) made knowingly or recklessly, and;

(c) made to promote, directly or indirectly, the use of Trivago and the OTA Websites and thereby the business interests of the Defendants.

97. Mr. Hoy, Mr. Storey and the Class paid the Defendants for services having certain characteristics, standards, benefits, and qualities described in the Advertising Practice Claims but received services that did not possess those characteristics, standards, benefits, and qualities.

98. Mr. Hoy, Mr. Storey, and the Class members suffered losses and damages as a result of the breach of s. 52 of the Competition Act equal to the commissions paid to the Defendants and are entitled to recover damages from the Defendants together with investigative costs pursuant to s. 36 of the Competition Act.

[109] In the immediate case, it is plain and obvious that the Competition Act statutory cause of action does not satisfy the cause of action criterion and cannot be certified. There are five reasons why the claim pursuant to the Competition Act is doomed to fail and is not certifiable in the immediate case.

[110] The first reason is that the Plaintiffs in the immediate case seek restitutionary remedies, or the remedy of disgorgement for the breach of the Competition Act; however, restitutionary remedies and disgorgement are not available under the Competition Act.[35] As Justice Newbury succinctly stated for the British Columbia Court of Appeal in Wakelam v. Johnson & Johnson at paragraph 90 of the Court’s judgment,[36]

90. Section 36 clearly limits recovery for pecuniary loss to "the loss or damage proved to have been suffered" by the plaintiff, together with possible investigatory costs incurred by the plaintiff. I see nothing in the Competition Act to indicate that Parliament intended that the statutory right of action should be augmented by a general right in consumers to sue in tort or to seek restitutionary remedies on the basis of breaches of Part VI.

[111] The second reason that the Competition Act cause of action does not satisfy the cause of action criterion, which reason is related to the first reason, is that for the statutory cause of action for misrepresentation under the Competition Act, damages is a constituent element of the cause of action;[37] however, in the immediate case, although compensatory damages have been pleaded, they are not being claimed for the action for which certification is being sought. What is being sought is restitutionary damages, nominal damages, punitive damages, or disgorgement.

[112] Without a claim for compensatory damages, the cause of action for breach of the Competition Act is doomed to fail because to establish a breach of s. 52 (1) and to obtain damages under s. 36 (1), a plaintiff must prove actual loss or damage caused by a materially false or misleading representation;[38] however, in the immediate case, the design of the Plaintiffs’ proposed class action is not to prove the damages from the alleged breach of the Competition Act; rather the claim is for restitutionary damages, nominal damages, or the remedy of disgorgement. It is plain and obvious that this cause of action as pleaded is doomed to fail and therefore it does not satisfy the cause of action criterion.

[113] The third reason that the claim under the Competition Act is doomed to fail is that for a viable claim for damages under the Competition Act,[39] the Class Members must have suffered loss “as a result” of the defendant’s conduct, and this requires the Plaintiff to plead and then prove that the misrepresentation was relied on to the Class Member’s detriment; i.e. that the Class Member suffered damages arising from the misrepresentation.[40] In the immediate case, the Plaintiffs neither plead nor plan to prove reliance. They do not do so because in the immediate case proof of reliance and causation could be done only on an individual basis and this would be fatal to certification because the proceeding would break down into individual proceedings to prove reliance and the action would not be certifiable as a class proceeding.[41]

[114] In Matoni v. CBS Interactive Multimedia,[42] Justice Hoy, as she then was, stated at paragraph 40:

40. While, pursuant to s. 52(1.1), it is not necessary to prove that a person was in fact misled or deceived in order to establish a breach of s. 52, in order to obtain damages under s. 36(1), a causal connection between the alleged breach of s. 52 and the damages claimed under s. 36 must be proven: Williams v. Mutual Life Assurance Co. of Canada (2000), 2000 CanLII 22704 (ON SC), 51 O.R. (3d) 54, para. 34 (S.C.J.); Lawrence v. Atlas Cold Storage Holdings Inc., [2006] O.J. No. 3748 (S.C.J.); and Hyprescon Inc. v. Ipex Inc., 2007 CanLII 11316 (ON SC), [2007] O.J. No. 1327, paras. 65-71 (S.C.J.).

[115] In Singer v. Schering-Plough Canada Inc.,[43] Justice Strathy, as he then was, stated at paragraphs 107-108:

107. […] s. 52(1) does not create a cause of action. The cause of action, or right of action, is created by s. 36. The plain language of that section makes it clear, […] that the plaintiff must show both a breach of s. 52 and loss or damage suffered by him or her as a result of that breach. That can only be done if there is a causal connection between the breach (the materially false or misleading representation to the public) and the damages suffered by the plaintiff. […] The failure of the plaintiff to plead a causal link is fatal to this claim.

108. Section 52 (1.1) only removes the requirement of proving reliance for the purpose of establishing the contravention of s. 52 (1). The separate cause of action, created by s. 36 in Part IV of the Competition Act, contains its own requirement that the plaintiff must have suffered loss or damage "as a result" of the defendant's conduct contrary to Part VI. It is not enough to plead the conclusory statement that the plaintiff suffered damages as a result of the defendant's conduct. The plaintiff must plead a causal connection between the breach of the statute and his damages. […] this can only be done by pleading that the misrepresentation caused him to do something - i.e., that he relied on it to his detriment.

[116] It is a debatable proposition whether on a close reading Drynan v. Bausch Health Companies Inc.,[44] and Rebuck v. Ford Motor Company, (2018)[45] are inconsistent with the authorities that establish that proof of reliance is a requisite for a claim under the Competition Act, but notwithstanding the Plaintiffs’ submissions that I should follow those cases on the matter of detrimental reliance not being a requisite element to the Competition Act cause of action, given the binding appellate authority on that matter, to the extent that there is an inconsistency, I ought not and I do not follow those cases on this particular point.

[117] The fourth reason that the Competition Act claim does not satisfy the cause of action criterion is that the Competition Act does not impose a general duty of disclosure, and representations by omission are not actionable under the Competition Act even though they might be actionable under consumer protection legislation.[46] The Plaintiffs’ case is built on the material facts associated with the default order of the Defendants’ search results listings, but the Plaintiffs do not allege that the information itself is false or inaccurate; rather, the essential allegation is that the Defendants did not disclose or did not adequately disclose the role of commissions in organizing the search results. The misrepresentations in the immediate case are essentially that the Defendants failed to disclose the role played by commission payments in the search engine reports. This type of misrepresentation by omission is not actionable under the Competition Act.

[118] The fifth reason that the Competition Act claim does not satisfy the cause of action criterion is that it is a constituent element of the misrepresentation claim is that the defendant made its misrepresentation “knowingly or recklessly.”[47] There is no allegation in the immediate case that the raw information provided by the Accommodation Providers was false and the Plaintiffs do not plead any material facts that would support the allegation that the Defendants had knowledge of the false and misleading character or was reckless with respect to the false and misleading aspects of its search engine reports.

[119] For the above reasons, I conclude that the cause of action criterion is not satisfied for the Competition Act cause of action.

3. Unjust Enrichment

[120] The substantive law basis for the Plaintiffs’ unjust enrichment claim is set out in paragraphs 99-10 of the Statement of Claim as follows:

I. RESTITUTION

99. The Defendants have been unjustly enriched by the misconduct set out above in breach of the CPA and Equivalent Consumer Protection Legislation and in breach of the Competition Act. Their enrichment is in the form of sales revenues that they would not otherwise have received but-for their misconduct.

100. Class members are entitled to a remedy in the form of restitution or disgorgement (and to the extent necessary an accounting) of the revenue earned by the Defendants as a result of their misconduct.

[121] It is plain and obvious that the Plaintiffs’ claim for unjust enrichment is legally untenable and does not satisfy the cause of action criterion; the cause of action is doomed to fail.

[122] The elements of a cause of action for unjust enrichment are: (1) the defendant has been enriched; (2) the plaintiff has suffered a deprivation that corresponds to the defendant’s enrichment; and (3) the absence of any juristic reason justifying the defendant’s retention of that transfer of value.[48]

[123] In Moore v Sweet,[49] the Supreme Court of Canada stated that for an unjust enrichment, it must be shown that something of value – a tangible ‘benefit’ – passed from the plaintiff to the defendant.[50] For an unjust enrichment claim there must be a correspondence between the defendant’s enrichment and the plaintiff’s deprivation in the sense that the plaintiff made a direct contribution causing the defendant’s unjust enrichment or the plaintiff made an indirect contribution causally connected to the defendant obtaining a benefit that rightfully ought to have accrued to the plaintiff.[51]

[124] In the immediate case, there has been no transfer of money from the Class Members to the Defendants; rather, the Class Members transferred money to the Accommodation Providers and received accommodation about which there is no complaint. It is plain and obvious that there are no material facts pleaded or that could be pleaded to support a claim for unjust enrichment.[52]

[125] I appreciate that in Pro-Sys Consultants Ltd. v. Microsoft Corporation,[53] the Supreme Court of Canada did not close the door on a transfer of wealth that was indirect between the plaintiff and the defendant as providing the basis for an unjust enrichment claim. There, however, is no direct or indirect transfer of wealth to the Defendants in the immediate case to the detriment of the Class Members who received accommodation in exchange for what they paid.

[126] Even assuming that the Defendants’ conduct was wrongful under the consumer protection statutes or under the Competition Act, the Plaintiffs and the Class Members, who have no complaint about the accommodation they enjoyed, have suffered no unjust deprivation, and there is no basis for the putative Class Members to say that they are the ones that ought to have a claim to the commissions received by the Defendants, and so it follows that they cannot satisfy the deprivation of wealth component of an unjust enrichment cause of action.

[127] Further, in the immediate case, the Defendants were not enriched by any deprivation of the Plaintiffs or the Class Members, but assuming that there was an unjust enrichment in the immediate case, the third element of the cause of action for unjust enrichment is not satisfied; there is a juristic reason for any enrichment.[54] In the immediate case, the enrichment of the Defendants, if any, is associated with the payments received from the Accommodation Providers, and there is a juristic reason for those payments. The Defendants other than Trivago have agreements with the Accommodation Providers. The Accommodation Providers are provided with a means to market their wares. In consideration of that marketing tool, the Accommodation Providers provide the marketing information and pay a commission to the Defendants. In the case of Trivago, it has agreements that provide for compensation from those Online Travel Agents (like the Defendants) and the Accommodation Providers which avail themselves of Trivago’s website. A contract can constitute a juristic reason to deny recovery if it permits the receipt of the funds and the contract is valid and enforceable.[55] There is no reason or basis to vitiate the contract between the Defendants and the Accommodation Providers who provided the Defendants with the information about available accommodation. There is no suggestion in the immediate case that any of the contracts, be they for the use of the Defendants’ search engines or be they between the putative Class Members and the Accommodation Providers, or between the Defendants and the Accommodation Providers, are illegal and should not be enforced.

[128] It is plain and obvious that the cause of action for unjust enrichment does not satisfy the cause of action criterion in the immediate case.

4. The Consumer Protection Claims for British Columbia, Saskatchewan, Ontario, Québec, New Brunswick, Nova Scotia, Yukon, the Northwest Territories, and Nunavut

[129] The substantive law basis of the Plaintiffs’ Consumer Protection Act claims is set out in paragraphs 83-94 of the Statement of Claim as follows:

G. BREACH OF THE CONSUMER PROTECTION ACT

83The Plaintiffs plead and rely on the CPA and equivalent consumer protection legislation of other provinces and territories

84. Mr. Hoy, Mr. Storey, and the Class are each considered “consumers” pursuant to the CPA and Equivalent Consumer Protection Legislation.

85. Booking Group and the Expedia Group are “suppliers” pursuant to the CPA and Equivalent Consumer Protection Legislation […].

86. Trivago N.V. is an agent of each of the Expedia Group and Booking Group in respect of any accommodations booked on those sites originating from a Trivago referral and is also a “supplier” pursuant to the CPA and Equivalent Consumer Protection Legislation.

87. The OTA Websites and their sales agents (Trivago and […]) engaged in “consumer transactions” pursuant to the CPA and Equivalent Consumer Protection legislation by conducting business and other dealings with consumers in marketing and promoting, advertising, and offering for sale the OTA and Trivago services.

88. Mr. Hoy, Mr. Storey, and the Class purchased accommodation using the OTA Websites during the Class Period during which the Defendants and their sales agents made or were making the Advertising Practice Claims.

89. The Advertising Practice Claims of the Defendants are false, misleading, or deceptive and constitute unfair practices contrary to section 14 and section 17 of the CPA and similar provisions of Equivalent Consumer Protection Legislation. The Advertising Practice Claims are false, misleading or deceptive because, among other things, they:

(a) fail to state, or use exaggeration, innuendo or ambiguity as to material facts in respect of the Trivago and OTA Website services that deceive or tend to deceive (s. 14(2)(14), CPA);

(b) represent that the Trivago and OTA Websites have qualities that they do not have (s.14(2)(1), CPA)); and

(c) with respect to the Urgency and Discount Practices, make representations “that a specific price advantage exists” when it does not (s. 14(2)(11), CPA)).

90. In making the Advertising Practice Claims, the OTA Websites acted unconscionably and have engaged in unfair practices contrary to sections 15 and 17 of the CPA and similar provisions of Equivalent Consumer Protection Legislation. Separately, in making the Search Result and Discount Claims, Trivago acted unconscionably and engaged in unfair practices contrary to sections 15 and 17 of the CPA and similar provisions of Equivalent Consumer Protection Legislation.

91. Among other things, the Defendants knew or ought to have known that:

(a) Consumers would be unable to protect their interests because of ignorance (s. 15(2)(a), CPA));

(b) The Advertising Practice Claims contained misleading statements of opinion (including by way of omission) upon which consumers were likely to rely to their detriment (s. 15(2)(g), CPA));

(c) Consumers would be unable to receive a substantial benefit (or any benefit) from the subject matter of the Advertising Practice Claims (s. 15(2)(c), CPA));

(d) As a consequence of the Advertising Practice Claims, consumer transactions were excessively one-sided in favour of the Defendants (s. 15(2)(e), CPA)); and

(e) With respect to the Urgency and Discount Claims, that the consumer is being subjected to undue pressure to enter into a consumer transaction (s. 15(2)(h), CPA)).

92. The Class members are entitled to damages under section 18(2) of the CPA and similar provisions of Equivalent Consumer Protection Legislation because the return or restitution of the services purchased from the Defendants is no longer possible.

93. The Defendants are jointly and severally liable under section 18(12) of the CPA with Trivago for those Class members who entered into consumer agreements with the Defendants through Trivago.

94. It is in the interests of justice that the Class members obtain, to the extent necessary, a waiver of any notice requirements under the CPA and Equivalent Consumer Protection Legislation.

[130] The Plaintiffs do not satisfy the cause of action criterion for the consumer protection claims for the Class Members of British Columbia, Saskatchewan, Ontario, Québec, New Brunswick, Nova Scotia, Yukon, the Northwest Territories, and Nunavut for the following reasons.

[131] In paragraph 83 of the Statement of Claim, the Plaintiffs assert that all the provinces and territories have consumer protection legislation equivalent to Ontario’s Consumer Protection Act, 2002. This allegation or legal argument is incorrect or at least inaccurate. It is true that the general approach of the consumer protection statutes is similar across the country. However, it is inaccurate to say that the consumer protection statutes of all the provinces and territories are equivalent.

[132] There are important differences in the consumer protection statutes across the country. For example, unlike the other provinces and territories, in Ontario, Prince Edward Island, and Newfoundland and Labrador, privity of contract is required for claims of unfair practices under the consumer protection statutes.[56]

[133] Thus, in the immediate case, the consumer protection claims against Trivago N.V. in Ontario, Prince Edward Island, and Newfoundland and Labrador fail for want of privity; there is no “consumer agreement” between Trivago N.V. and the putative Class Members.

[134] Richardson v. Samsung Electronics Canada Inc.,[57] which was affirmed by the Divisional Court, Williams v. Canon Canada Inc.,[58] which was affirmed by the Divisional Court, and Singer v. Schering-Plough,[59] are authority that consumers who do not have a contractual relationship with the supplier do not have a claim for unfair practices under Ontario’s Consumer Protection Act, 2002. Until this line of cases is expressly overturned by the Court of Appeal, they are binding decisions. I, therefore, do not follow the lower court decisions that assert that it is not plain and obvious that privity is a requirement of the Ontario statute, and the point remains unsettled.[60] I conclude that privity of contract is a requirement of the consumer protection statues of Ontario, Prince Edward Island, and Newfoundland and Labrador.

[135] In six jurisdictions, Québec, New Brunswick, Nova Scotia, Yukon, the Northwest Territories, and Nunavut, there is no statutory cause of action. In these provinces, the breach of the statute must be pleaded as an aspect of a non-statutory cause of action. This has not been done in the immediate case for the putative class members from these provinces and territories. This is a more serious deficiency than the failure to plead the section numbers of a statute; it is a failure to plead all the constituent elements for the cause of action that is the vehicle for the breach of the statute.

[136] In British Columbia, Alberta, Saskatchewan, and Newfoundland and Labrador reliance is a constituent element of the cause of action.[61] However, in the immediate case, the Plaintiffs do not plead reliance as a material fact for the Class Members from these provinces. To advance a cause of action for the Class Members from these provinces reliance must be a pleaded material fact and the Plaintiffs do not plead this material fact, which is a necessary constituent element of the claims for these Class Members.

[137] For Québec, s. 272 of its Consumer Protection Act, enables rescission, but s. 272 does not provide for a cause of action for damages. To recover damages, the consumer protection action in Québec would have to be brought under the Civil Code, but no such claim is pleaded in the immediate case.

[138] There is no cause of action for unfair practices in Nova Scotia’s or the Northwest Territories’ or Nunavut’s consumer protection legislation.[62]

[139] In British Columbia, there is no consumer protection cause of action for the failure to disclose information.[63]

[140] I, therefore, conclude that the Plaintiffs do not satisfy the cause of action criterion for the consumer protection claims for the putative Class Members from British Columbia, Saskatchewan, Ontario, Québec, New Brunswick, Nova Scotia, Yukon, the Northwest Territories, and Nunavut.

5. The Statutory Consumer Protection Claims against the Online Travel Agencies

[141] Assuming that the analysis in the immediately preceding section of these Reasons for decision is incorrect, the cause of action for the consumer protection claims for the putative Class Members from British Columbia, Saskatchewan, Ontario, Québec, New Brunswick, Nova Scotia, Yukon, the Northwest Territories, and Nunavut, would, in any event, not satisfy the cause of action criterion. The cause of action criterion for the consumer protection claims is not satisfied for the putative Class Members from all of Canada’s thirteen provinces and territories because: (a) the Plaintiffs are seeking remedies that are not available under the consumer protection legislation; and (b) it is plain and obvious that the remedies they seek would also not be available at common law or equity for breaches of the consumer protection legislation.

[142] In the next two parts of my reasons, I shall explain why the remedies being sought by the Plaintiffs are not available under the consumer protection legislation. After that discussion, in the next part, I shall explain why the remedies are not available at common law or in equity.

[143] As noted above, in the overview and summary, it is the Plaintiffs’ thesis that compensatory damages are not a constituent element of the statutory cause of action for damages under Ontario’s Consumer Protection Act, 2002 or under the actions, statutory or otherwise, that may be brought under the Equivalent Consumer Protection Legislation of the provinces and territories. It is Plaintiffs’ thesis that if they show a breach of the legislation, then the court can provide whatever remedy it concludes is appropriate.

[144] This thesis that compensatory damages are not a constituent element of the statutory cause of action is threefold odd given that: (a) it is counterintuitive that an action purportedly for damages would not have compensatory damages as a constituent element; (b) the doctrinally related actions of misrepresentation under the Competition Act and the torts of negligent and fraudulent misrepresentation do have damages as a constituent element; and (c) the Plaintiffs argue that they and the Class Members actually did suffer compensatory harm, i.e. damages. In regard to the last oddity, the Plaintiffs submit that although they suffered compensatory damages, they are unable to quantify the compensatory damages in the circumstances of the immediate case even at individual issues trials, and thus they are not claiming compensatory damages but rather they claim restitutionary damages, nominal damages, punitive damages, or disgorgement instead of compensatory damages.

[145] Notwithstanding these oddities, in my opinion, doctrinally and technically speaking, the Plaintiffs are correct that damages are not a constituent element of the statutory cause of action under Ontario’s Consumer Protection Act, 2002 or under the Equivalent Consumer Protection Legislation of the provinces and territories. However, while the Plaintiffs’ submission is correct, it is does not follow that the Plaintiffs and the Class Members satisfy the criterion that the pleadings disclose a cause of action for restitutionary damages, nominal damages, or disgorgement. As I shall now explain, no consumer protection statutory cause of action exists for restitutionary damages, nominal damages, or disgorgement. I will discuss the Plaintiffs’ claim for punitive damages in the next section of my reasons for decision. That cause of action exists, but I foreshadow to say that in the immediate case, the Plaintiffs do not satisfy that cause of action criterion for a claim for punitive damages.

[146] The analysis and explanation of why damages is not a constituent element of the statutory cause of action but why the putative Class Members cannot cherry pick another remedy for a breach of the consumer protection statutes may begin with the observations that: (a) the matter of the available remedies of a breach of the consumer protection statutes is a matter of statutory interpretation; (b) the primary remedy identified for the causes of action pursuant to the consumer protection statues is rescission; and (c) damages is the remedy for breach of the consumer protection legislation only if rescission is not available. Under the statutes, damages is an ancillary or secondary remedy if rescission is not available.

[147] Using s. 18 of Ontario’s Consumer Protection Act, 2002 to illustrate the point, as a matter of statutory construction, the constituent elements for the statutory rescission claim are threefold: (a) an unfair practice; (b) a consumer agreement; and (c) the consumer entering into the agreement during the currency of the unfair practice, which satisfies the causation element. Damages are not a constituent element for the rescission claim. Damages are just an alternative remedy for the breach of the statutory cause of action when rescission is not possible or fair in the circumstances of the case.

[148] It follows that as a matter of statutory construction, the constituent elements for the remedy of damages under the Consumer Protection Act, 2002 are fivefold: (a) a consumer agreement; (b) an unfair practice; (c) the consumer entering into the consumer agreement during an unfair practice; (d) rescission not being possible because the return or restitution of the goods or services is no longer possible or because rescission would deprive a third party of a right in the subject-matter of the agreement that the third party has acquired in good faith and for value; and (e) the consumer giving notice of his or her claim for a remedy within one year after entering into the consumer agreement.[64]

[149] As a matter of statutory interpretation, s. 18 (2) of the Consumer Protection Act, 2002 describes and prescribes the remedy available to the consumer as “the amount by which the consumer’s payment under the agreement exceeds the value that the goods or services have to the consumer or to recover damages.” When used in legislation, common-law terms and concepts are presumed to retain their common-law meaning,[65] and as confirmed by Justice Feldman, in Ramdath v. George Brown College of Applied Arts and Technology, 2015 ONCA 921, which is discussed further below, the meaning of damages for the Consumer Protection Act, 2002 is the damages that would available at common law for a misrepresentation claim.

[150] As a matter of statutory interpretation, the consumer protection statutes do not provide a foundation for remedies other than the remedies specified by the consumer protection statutes. Put somewhat differently, the consumer protection statutes are a complete code for the remedies available for consumers, and in the immediate case, the statutes do not support the putative Class Members’ claims for restitutionary damages, nominal damages, or the disgorgement remedy. The argument that the Plaintiffs make to the contrary was rejected a decade ago by the British Columbia Court of Appeal in Koubi v. Mazda Canada Inc.[66]

[151] Koubi v. Mazda Canada Inc. is factually quite similar to the case at bar. In that case, the plaintiffs in a proposed class action alleged that the Defendant Mazda installed defective door locks in its motor vehicles. The plaintiffs alleged that the installation of the defective door locks breached the British Columbia Sale of Goods Act[67] and the British Columbia Business Practices and Consumer Protection Act, its consumer protection statute.[68] Insofar as the consumer protection statute was concerned, the allegation was that representations about the door locks made by Mazda were deceptive practices by a supplier.

[152] The Plaintiff in Koubi v. Mazda Canada Inc., like the Plaintiffs in the immediate case, did not claim compensatory damages. She did not claim that the putative Class Members suffered damages such as the loss of use of their vehicles or the cost of repair. Instead, she sought restitutionary damages (waiver of tort) measured by the profits earned by Mazda. The issue on the appeal to the British Columbia Court of Appeal was whether British Columbia’s sale of goods and consumer protection statutes could provide a foundation for an award of restitutionary damages and disgorgement of Mazda’s profits. The Court decided the question negatively, and it decertified the Plaintiffs’ claims for restitutionary remedies.

[153] Justice Neilson, who wrote the judgment for the Court, stated at paragraph 52 that the critical question was whether the legislature intended to depart from the general rule that statutory rights are enforced by the statutory remedies provided. At paragraphs 63-64, he stated:

63 […] A close examination of the [Business Practices and Consumer Protection Act's] legislative objectives and provisions reveals a clear intent to provide an exhaustive code regulating consumer transactions, directed to both protection of consumers and fairness and consistency for all parties in the consumer marketplace. The Act has over 200 provisions that comprehensively establish, administer, and enforce statutory rights and obligations directed to the regulation of consumer transactions in a multitude of circumstances. […]

64 I discern nothing in the [Business Practices and Consumer Protection Act] to support the view that the legislature intended to augment its statutory remedies by permitting consumers to mount an action against a supplier for restitutionary relief […]. Such a conclusion is inconsistent with the express language […] which clearly limit recovery for pecuniary loss to restoration of the consumer's own damages or loss arising from a deceptive act.

65 Ms. Koubi is restricted to the remedies provided by the Act. I am satisfied Ms. Koubi's claim for restitutionary damages and disgorgement of profits […] does not disclose a cause of action.

[154] Other cases have followed Koubi v. Canada to hold that restitution and disgorgement are not available remedies for breaches of consumer protection statutes.[69]

[155] The thrust and purpose of the remedies of the Consumer Protection Act, 2002 is toward rescission which is restorative, and the remedies of the Act are not connected to the contractual measure for disappointed promises or to disgorgement measure, which focuses on the defendant’s gains and not the plaintiff’s losses. In equity, rescission restores a person to his or her pre-contracting position, and that remedy is the apparent goal of the consumer protection statutes. The common law measure of damages for misrepresentation uses money to restore the innocent party to its pre-contractual position and compensate him or her for the harm suffered. The common law measure of damages is the alternative to rescission under the consumer protection legislation from across the country. In contrast, the contractual measure of damages uses money to place the contracting party in the position he or she would have been had the contract promises been performed. There is nothing in the consumer protection statutes that suggests the contract measure of damages could or should be an alternative to rescission. In contrast to both a reliance or expectation measure of damages, disgorgement is a remedy that focuses on the defendant’s gains and more than restores the plaintiff to his or her pre-contractual position and may even exceed the contractual measure of damages. There is nothing in the consumer protection statutes that suggests the contract measure of damages could or should be an alternative to rescission. In the immediate case, the remedies sought by the Plaintiffs for breach of the consumer protection statutes are not to be found in the statutes and the remedies sought go far beyond being restorative, which is the manifest intent of the legislatures in enacting consumer protection statutes that make rescission the primary remedy and compensatory restorative-damages a derivative remedy when rescission is not fair or feasible.

[156] In the immediate case, the Plaintiffs have pleaded the constituent elements of the Ontario Consumer Protection Act, 2002, and the Plaintiffs could have satisfied the cause of action criterion for the Ontario Class Members - if they were seeking what the statute provides as a remedy; i.e., (a) rescission; (b) compensatory damages in lieu thereof; and (c) in addition punitive damages. However, in the immediate case, save for the claim for punitive damages, discussed in the next section of these Reasons for Decision, the Plaintiffs do not claim the remedies actually prescribed by the Consumer Protection Act, 2002. They do not claim the amount by which the Class Member’s payment under the agreement exceeds the value that the goods or services have to the consumer. Rather, the Plaintiffs seek restitutionary damages, nominal damages, or disgorgement. The Plaintiffs are hoisted on their strategic petard; no such statutory cause of action exists. What exists in the immediate case, is a statutory cause of action for the conventional tort damages associated with a claim for misrepresentation. Thus, the Plaintiffs do not satisfy the cause of action criterion for the claims under the consumer protection legislation.

[157] In advancing their thesis that damages are not a constituent element of the claims for damages under consumer protection legislation, which thesis they advance for the strategic purposes of claiming restitutionary damages, nominal damages, punitive damages, or disgorgement, the Plaintiffs rely in part on the epic Ramdath v. George Brown College of Applied Arts and Technology cases, a series of six decisions, where the Plaintiffs advanced a consumer protection claim.[70]

[158] The Ramdath case was a class action brought by a group of post-graduate students who enrolled in a program at George Brown College based on a false and misleading statement in the course calendar that the program would qualify the students for three certifications or designations in international business management. Justice Strathy, as he then was, certified the action under the Consumer Protection Act, 2002, but he did not certify the damages questions as common issues.[71] After certification, Justice Belobaba heard the common issues trial, and he concluded that there was a contravention of the Consumer Protection Act, 2002.[72] Justice Belobaba’s liability decision was upheld by the Court of Appeal.[73] Next, Justice Belobaba heard the damages quantification trial, and in two reported decisions, he made an aggregate damages award[74] that was varied by the Court of Appeal.[75]

[159] All of the Ramdath decisions are authority for the proposition that reliance per se is not a constituent element of the statutory cause of action under Ontario’s Consumer Protection Act, 2002. None of the cases squarely address the issue of whether damages are a constituent element of the cause of action. The closest the judgments approach addressing that issue is Justice Feldman’s comment at paragraph 90 of the Court of Appeal’s decision on the appeal about Justice Belobaba’s aggregate damages award, where she said:

90. [George Brown College] argued, both at trial and on appeal, that to claim and be awarded damages under s. 18(2), a consumer still needs to establish causation. I agree. However, the necessary causal link is the link between the damages and the agreement, i.e., that the consumer suffered damages that flowed from entering into an agreement after or while an unfair practice was occurring. What is not required is a causal link between the actual unfair practice and the damages. That is because damages are payable regardless of reliance. To require the causal link suggested by [George Brown College] would reintroduce the need for reliance or inducement into the remedy for an unfair practice. It would therefore be wrong in law.

[160] In the immediate case, the opposing sides both relied on this passage from Justice Feldman’s judgment for the Court of Appeal for opposite purposes. However, the passage assists neither party. All this passage confirms is that reliance is a not a constituent element of the statutory cause of action. And the passage confirms that if the constituent elements of the Consumer Protection Act, 2002 are satisfied, then the consumer is entitled to compensation for the damages that flowed from entering into an agreement during the time when an unfair practice was occurring regardless of whether they knew that the unfair practice was occurring.

[161] What exists in the immediate case is a statutory cause of action for compensatory damages; however, the Plaintiffs eschew making such a claim for the Class Members, and it therefore follows that the Plaintiffs do not satisfy the cause of action criterion for their claims for restitutionary damages, nominal damages, or disgorgement. Thus, for somewhat different reasons than argued by the Defendants, which reasons focus on whether compensatory damages are a constituent element for liability, the Plaintiffs do not satisfy the cause of action criterion for the consumer protection statutes because the remedies they seek from the alleged breach of the consumer protection statutes are not legally viable remedies in the circumstances of the immediate case.

6. The Consumer Protection Statutory Claim for Punitive Damages

[162] As just analyzed in the previous section of these Reasons for Decision, in the immediate case, save for the claim for punitive damages, by design, the Plaintiffs are not seeking a judgment for a remedy under the Consumer Protection Act, 2002; rather, as discussed above, they seek remedies outside of those available under the Act. I have already concluded that those remedies are not available in the immediate case and the cause of action criterion is not satisfied for those remedies. The next question to address is whether the Plaintiffs’ claim for just the remedy of punitive damages, which is a remedy provided for by the consumer protection statutes, satisfies the cause of action criterion.

[163] In the immediate case, the Plaintiffs claim punitive damages of $50 million. The Plaintiffs’ pleading for punitive damages is set out in paragraphs 102-103 of the Statement of Claim as follows:

PUNITIVE DAMAGES

102. This Court should order the Defendants to pay substantial exemplary and punitive damages. The Defendants' conduct was high-handed, malicious and reprehensible, and it departs to a marked degree from the standards expected of the most used and trusted online travel websites.

103. The Defendants consistently and repeatedly made the Advertising Practice Claims, which were false, misleading, deceptive, and unconscionable. The Defendants continued to do so (in whole or part) even after they agreed in other jurisdictions to cease engaging in these unfair and deceptive practices. A substantial exemplary and punitive damages award is appropriate to deter the Defendants and other travel metasearch and OTAs from engaging in this predatory and abusive conduct.

[164] At common law punitive damages are available only exceptionally and with restraint; to attract punitive damages, the defendant’s conduct must depart markedly from ordinary standards of decency; visualize conduct that be described as malicious, oppressive or high-handed and offensive to the court’s sense of decency.[76] Pursuant to s.18 (11) of Ontario’s Consumer Protection Act, 2002, a court may award exemplary or punitive damages in addition to any other remedy in an action commenced under this section. Section 100 of the Act provides for an action in the Superior Court of Justice in which in addition to a judgment for the full payment to which the consumer is entitled under the Act, the court may award exemplary or punitive damages. I shall explain below why I have emphasized “in addition” in reciting sections 18 (11) and 100 of the Act.

[165] The answer to the question of whether the Plaintiffs’ claim for just the remedy of punitive damages satisfies the cause of action criterion may be found by examining the jurisprudence from Québec where the Supreme Court of Canada has examined the law associated with the why, the when, and the how of awarding punitive damages “in addition to” the remedies available under consumer protection legislation. As it happens, the legal situation about the remedies for a breach of a consumer protection statute in Québec is the same for the common law territories and provinces.

[166] For Québec, the Supreme Court of Canada’s decision in Richard v. Time Inc.[77] is authority that a consumer can be awarded punitive damages even if he or she was not awarded compensatory damages under the consumer protection statute. The Supreme Court of Canada’s decision was a matter of statutory interpretation of the Québec statute.

[167] The facts of Richard v. Time Inc. were that Mr. Richard received in the mail an Official Sweepstakes Notification Letter. Reading the letter, he believed he had won a case prize of $833,337 (US). When he was not paid the prize, he sued for a declaration that he was the winner of the prize. He alleged that the letter breached Québec’s Consumer Protection Act on prohibited business practices. In a joint judgment written by Justices LeBel and Cromwell for the Supreme Court of Canada (Chief Justice McLachlin, and Justices Deschamps, Fish, Abella, and Charron concurring), the Court concluded that the Québec Act had been breached. The Court ruled that where a manufacturer fails to fulfil an obligation under the Act, the consumer can claim a contractual remedy, compensatory damages, and punitive damages, or just one of those remedies. The Court ruled that it was for the trial judge to award the remedies that he or she considers appropriate in the circumstances in accordance with the principles governing the application of the Act and, where applicable, the rules of the general law.

[168] In Richard v. Time Inc., there was no reason to interfere with the trial judge’s finding that Mr. Richard had suffered moral injuries for which he was entitled to an award of $1,000. Mr. Richard was also entitled to punitive damages. The Supreme Court concluded that having regard to how punitive damages should be determined under Québec’s consumer protection statute, the appropriate award for punitive damages was $15,000 and not the $100,000 awarded by the trial judge.

[169] For present purposes, two holdings by the Supreme Court of Canada in Richard v. Time Inc. are pertinent. The first holding is that as a matter of statutory interpretation of Québec’s Consumer Protection Act, punitive damages were available even if the other remedies under the Act were not. At paragraphs 144 to 147, Justices Lebel and Cromwell stated:

Independent Nature of Punitive Damages

144. The respondents argue in their factum that a claim for punitive damages […] is admissible only if one of the contractual remedies provided for in s. 272(a) to (f) is awarded at the same time […] In our opinion, the respondents' argument is wrong in law and must fail.

145. First of all, as with compensatory damages, we must take account of the actual wording of s. 272 C.P.A., which clearly states that consumers who exercise a recourse under that section "may also claim punitive damages". As we explained above, this confirms that the legislature intended to allow consumers who exercise a recourse under s. 272 C.P.A. to choose between a number of remedies capable of correcting the effects of the violation of the rights conferred on them by the Act. Consumers who exercise the recourse provided for in s. 272 C.P.A. can therefore choose to claim contractual remedies, compensatory damages and punitive damages or to claim just one of those remedies. It will then be up to the trial judge to award the remedies he or she considers appropriate in the circumstances.

146. Moreover, our interpretation is consistent with the one adopted by this Court in de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64. In that case, the Court stated that s. 49, para. 2 of the Charter of human rights and freedoms, R.S.Q., c. C-12 ("Quebec Charter") creates an independent and distinct right to claim punitive damages. In its decision, the Court accepted (at para. 40) the opinion expressed by L'Heureux-Dubé J., dissenting in part, in Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., 1996 CanLII 208 (SCC), [1996] 2 S.C.R. 345, at para. 62, that the words "in addition" in s. 49, para. 2 of the Québec Charter.

simply mean that a court can not only award compensatory damages but can "in addition", or equally, as well, moreover, also (see the definition of "en outre" in Le Grand Robert de la langue française (1986), vol. 6), grant a request for exemplary damages. The latter type of damages is therefore not dependent on the former. [Emphasis in original.]

According to LeBel J. in de Montigny, "[t]he solution adopted by L'Heureux-Dubé J. seems in fact to be the appropriate one in cases where, as here, the imperative of preserving government compensation systems is not part of the legal context" [page329] (para. 42). These comments are also applicable in the instant case.

147. Consumers can be awarded punitive damages under s. 272 C.P.A. even if they are not awarded contractual remedies or compensatory damages at the same time. This means that there was nothing to prevent the trial judge from ordering the respondents to pay punitive damages.

[170] Based on the ruling of the Supreme Court in Richard v. Time Inc., I conclude that punitive damages are available as a remedy under Ontario’s Consumer Protection Act, 2002 independent of the claims for other remedies under the Act. Punitive damages are available “in addition to” those remedies. Thus, in the immediate case, the Plaintiffs might be able to satisfy the cause of action criterion just for the remedy of punitive damages from a breach of the consumer protection statutes.

[171] Why the Plaintiffs, however, do not satisfy the cause of action criterion for a remedy of punitive damages brings me to the second holding of the Supreme Court of Canada in Richards v. Time Inc., that is pertinent to the immediate case.

[172] In Richard v. Time Inc., relying on the common law cases about awards of punitive damages,[78] the defendant argued that punitive damages should be awarded only if the defendant’s conduct was in bad faith or malicious. The Supreme Court disagreed. The Court held that while punitive damages could be awarded in accordance with the common law’s standard when the defendant’s conduct was in bad faith or malicious, the criteria for awarding punitive damages under the consumer protection statute was not limited to such conduct and the criteria for determining when and how punitive damages may be awarded could and must take into account the general objectives of punitive damages and the objectives of the Consumer Protection Act.

[173] Taking into account the objectives of a Consumer Protection Act means identifying those objectives. In Richard v. Time Inc., the Supreme Court identified two objectives. The first objective is to restore the balance in the contractual relationship between merchants and consumers because consumers have less bargaining power and are at risk of informational vulnerability in their relationship with merchants. The second objective is to eliminate unfair and misleading practices that may distort the information available to consumers and prevent them from making informed choices. With these objectives in mind, then, in establishing criteria for awarding punitive damages, the Supreme Court held that it had to be borne in mind that Québec’s Consumer Protection Act is a statute of public order and that the public order status highlighted that the Act needed to be strictly enforced by the courts.[79]

[174] Thus, the Supreme Court concluded that the purpose of an award of punitive damages under Québec’s Consumer Protection Act is to prevent conduct on the part of merchants and manufacturers in which they display ignorance, carelessness or serious negligence with respect to consumer’s rights and the merchant’s and manufacturer’s obligations to consumers under the Act and also to provide a recourse to consumers in response to merchants’ and manufacturers’ acts that are intentional, malicious or vexatious.[80] The Supreme Court, however, held that the mere fact that a provision of Québec’s Consumer Protection Act has been violated is not enough to justify an award of punitive damages and the court must analyze the merchant’s conduct before, during and after a breach of the Act is brought to its attention.[81]

[175] The court summarized the criteria for an award of punitive damages under Québec’s Consumer Protection Act at paragraph 180 of its judgment, as follows:

180 In the context of a claim for punitive damages under s. 272 C.P.A., this analytical approach applies as follows:

1. The punitive damages provided for in s. 272 C.P.A. must be awarded in accordance with art. 1621 C.C.Q. and must have a preventive objective, that is, to discourage the repetition of undesirable conduct;

2. Having regard to this objective and the objectives of the C.P.A., violations by merchants or manufacturers that are intentional, malicious or vexatious, and conduct on their part in which they display ignorance, carelessness or serious negligence with respect to their obligations and consumers' rights under the C.P.A. may result in awards of punitive damages. However, before awarding such damages, the court must consider the whole of the merchant's conduct at the time of and after the violation.

[176] With this legal background from the Supreme Court of Canada’s jurisprudence, it is now possible to answer the question of whether in the immediate case, the Plaintiffs satisfy the cause of action criterion for a claim exclusively for punitive damages. (Their claim is exclusively for punitive damages because they are not claiming compensatory damages, the other remedy available to them under Ontario’s Consumer Protection Act, 2002 and their claims for restitutionary damages, nominal damages, or disgorgement are not available remedies under the statute.) In my opinion, it is plain and obvious that the Plaintiffs’ claim exclusively for punitive damages is not legally tenable.

[177] Upon analysis, the Plaintiffs claim for punitive damages is based on no more than the pleaded fact that the Defendants may have breached the unfair practices provisions of the Ontario Consumer Protection Act, 2002 and the comparable provisions from the other provinces and territories. However, as the Supreme Court pointed out, there must be something more than a breach of the Consumer Protection Act for an award of punitive damages.

[178] In the immediate case, there is no pleading beyond the allegations of breaches of the legislation. The circumstance that there were regulatory proceedings in Australia, the United Kingdom, and the European Union are no more than doubling down on the allegations of breaches of the legislation in the Statement of Claim, and it remains to be determined whether the conduct in Canada is the same or different than in Australia and the United Kingdom and it even remains to be determined whether the regulatory proceedings elsewhere are relevant given that the statutes and the jurisprudence may be different.

[179] There is no pleading of malicious or reprehensive conduct. There are no material facts pleaded upon which it could be concluded that the Defendants displayed ignorance, carelessness, or serious negligence with respect to their obligations and consumers’ rights under the Consumer Protection Act, 2002. It is plain and obvious that in the circumstances of the immediate case, the Plaintiffs’ claim for the remedy of punitive damages does not satisfy the cause of action criterion. Their claim for punitive damages is doomed to fail.

[180] I shall return to the topic of punitive damages again later in these Reasons for Decision. I foreshadow to say that if I am wrong in the above conclusion and the Plaintiffs do satisfy the cause of action for punitive damages, I would not certify the issue of punitive damages as a common issue and if the Plaintiffs’ action ultimately was only about a claim for punitive damages, I would conclude that the preferable procedure criterion is not satisfied.

7. Restitutionary Damages, Nominal Damages, and the Disgorgement Remedy under the General Law of Damages

[181] The discussion above yields the conclusion that restitutionary damages, nominal damages, punitive damages, and the disgorgement remedy are not available to the Plaintiffs as a matter of statutory interpretation of the consumer protection legislation. However, since class action certification decisions are frequently appealed, I shall assume my interpretation of the statutes is incorrect and analyze whether there are other reasons that support my conclusion that the cause of action criterion is not satisfied. In other words, I will assume that the consumer protection statutes have been contravened and I shall ask whether the general law of remedies would support a claim for restitutionary damages, nominal damages, or the disgorgement remedy.

[182] Answering that question, in my opinion, it is plain and obvious that the general law of remedies would not support any of these remedies in the immediate case. The normal law of remedies would also not support punitive damages, which is not a free-standing remedy, but ancillary to other remedies, and so punitive damages also would not be available in the circumstances of the immediate case where a claim for restitutionary damages, nominal damages or for disgorgement is legally untenable and as I have already mentioned the Plaintiffs do not plead the material facts that would support a claim for punitive damages.

[183] Thus, in addition to or apart from the above statutory construction argument, there is a mutually exclusive reason that restitutionary damages, nominal damages, and the disgorgement remedy are not available and therefore the Plaintiffs do not satisfy the cause of action criterion for the consumer protection claims (or for the Competition Act claims). More precisely, it is plain and obvious that these remedies would not be available under the common law or equity for a breach of the consumer protection legislation or for a common law misrepresentation claim even if the remedies were not excluded as a matter of statutory interpretation.

[184] The explanation why it is plain and obvious that the Plaintiffs do not have a viable cause of action for the remedies they are actually pursuing begins with the observation that Class Counsel in the immediate case join company with past crusaders in pursuit of the holy grail of class actions - a restitutionary remedy. For Class Counsel, a class action with a restitutionary remedy measured not by the Class Member’s losses, which may be too idiosyncratic to constitute a common issue, but measured by the defendant’s ill-gotten gains, is to die for.

[185] As a matter of the legal history of class actions, the first crusade for the holy grail of a restitutionary remedy began in 2014 with Justice Cullity’s decision at first instance[82] and Justice Epstein’s[83] decision for the Divisional Court in Serhan (Estate Trustee) v. Johnson & Johnson. The first crusade ended in 2020 with the Supreme Court of Canada’s decision in Atlantic Lottery Corp Inc. v. Babstock,[84] of which more will be said below. The case at bar is the second crusade, but it shall not last near as long as the first crusade.

[186] There is no doubt that restitutionary remedies exist, and there is no doubt that restitutionary causes of action and restitutionary remedies shall continue to exist both in equity and under the common law. In equity, remedies measured by the defendant’s gain are available for breach of fiduciary duty, breach of confidence, violation of intellectual property rights, and in circumstances where it would be appropriate to award a constructive trust for unjust enrichment or where a propriety remedy for the plaintiff is an appropriate response to the defendant’s wrongdoing because in good conscience, the defendant should not keep the property.[85] Under the common law, unjust enrichment has come to be recognized as a cause of action, and its remedy is a restitutionary remedy. [86] Under the common law, in rare and exceptional circumstances, restitutionary remedies are available for breach of contract.[87]

[187] Under the common law under what was historically labelled the doctrine of waiver of tort, restitutionary remedies existed for some torts. The crusade that began with Serhan (Estate Trustee) v. Johnson & Johnson was to expand the availability of restitutionary remedies to more torts or to make it a universally available remedy for all wrongdoing. As I shall explain below, Atlantic Lottery Corp Inc. v. Babstock, put an end to the grander crusade of a universal disgorgement remedy, but the case left open the possibility that restitutionary remedies may be expanded for exceptional circumstances.

[188] In Serhan Estate, the Representative Plaintiffs represented a class of diabetes patients. The Class Members purchased or had been provided with a medical device manufactured by the defendants Johnson & Johnson to measure blood glucose levels, but the device was actually useless for that purpose. In the United States, Johnson & Johnson pleaded guilty to three misdemeanor offences and paid a $29 million (U.S.) fine for manufacturing the device. In Canada, the plaintiffs brought a class action for damages for negligence, negligent misrepresentation, fraudulent misrepresentation, conspiracy, and breach of s. 52 (1) of the Competition Act. The problem with all these claims was that the patients had not suffered any injury from the use of the defective medical device apart from the pain of a pin prick for the drop of blood to be measured. To get around the problem of no meaningful damages, the Plaintiffs also sought punitive damages, disgorgement, and a constructive trust for all the revenue generated from the defendant’s sale of the medical device based on waiver of tort. Justices Cullity and Justice Epstein for the Divisional Court concluded that it was not plain and obvious that waiver of tort was not available. The Serhan Estate eventually settled without a determination on whether disgorgement would have been available.[88]

[189] The uncertainty in the law or causes of action and of remedies arising from the Serhan Estate case lasted for over a decade, which brings the analysis to Atlantic Lottery Corp. Inc. v. Babstock. [89] In the immediate case, the Plaintiffs heavily rely on the Atlantic Lottery case for their argument that it is not plain and obvious that their proposed class action is doomed to fail. The Plaintiffs rely on the dicta of Justice Brown as the basis for a restitutionary remedy, nominal damages, punitive damages, or for the remedy of disgorgement to respond to the Defendants’ breaches of the Competition Act and of the consumer protection statutes. Conversely, the Defendants heavily rely on the Atlantic Lottery case as demonstrating that the Plaintiffs’ proposed class action is doomed to fail. As I shall now explain, I agree with the Defendants.

[190] In Atlantic Lottery, the plaintiffs, Douglas Babstock and Fred Small, brought a proposed class action against the Atlantic Lottery Corp. which operated video lottery terminal games (“VLTs”). The plaintiffs sued for (a) breach of contract; (b) unjust enrichment; and (c) waiver of tort. The plaintiffs alleged that the VLTs are dangerous and deceptive. The waiver of tort claim was based on the allegation that Atlantic Lottery Corp. breached a duty to warn including the risk of gambling addiction and suicidal ideation. In a majority judgment written by Justice Brown (Abella, Moldaver, Côté, and Rowe, JJ., concurring), the Supreme Court of Canada, reversing the judgments below, concluded that none of the claims had any reasonable chance of success and dismissed the action. Justice Karakatsanis, (Wagner C.J. and Martin and Kasirer JJ. concurring) dissented only insofar as they would have allowed the breach of contract claim to proceed for nominal damages.

[191] For present purposes, it is necessary, to explain why Justice Brown concluded that the causes of action for waiver of tort and breach of contract and for restitutionary damages were doomed to fail.

[192] After concluding that it was time to end the uncertainty in the law of remedies about waiver of tort and gains-based remedies, Justice Brown began his explanation by addressing the matter of terminology. He defined the doctrinal terms as follows. “Restitution” is a gains-based remedy that restores to the plaintiff a benefit that had moved from the plaintiff to the defendant and the defendant is compelled to restore.[90] “Disgorgement” is a gains-based remedy that is calculated by to the defendant’s wrongful gain irrespective of whether the gain corresponds to the plaintiffs’ damages or whether the plaintiff suffered damages.[91]

[193] In Atlantic Lottery, the plaintiffs sought disgorgement for the cause of action for waiver of tort, but Justice Brown explained that waiver of tort was not a cause of action and disgorgement should be viewed as an alternative remedy for a small cadre of causes of action and not as an independent cause of action for any type of wrongdoing.[92] In order to claim a gains-based remedy, the plaintiff must first establish a cause of action (actionable misconduct) that supports a gains-based remedy; disgorgement is a remedy for a small cadre of causes of action.[93]

[194] In Atlantic Lottery, the plaintiffs’ claim of waiver of tort was essentially a negligence claim, for the failure to warn, for which disgorgement not compensatory damages was being sought. The strategy of the plaintiffs in that case was by pleading disgorgement as an independent cause of action, the plaintiffs were seeking to establish a new category of wrongful conduct akin to negligence without proof of damage.[94] This claim, however, was doomed to fail. Justice Brown stated at paragraphs 32and 34 of his judgment:

32. I acknowledge that disgorgement is available for some forms of wrongdoing without proof of damage (for example, breach of fiduciary duty). But it is a far leap to find that disgorgement without proof of damage is available as a general proposition in response to a defendant's negligent conduct. […]

34 The difficulty is not just normative, although it is at least that. The practical difficulty associated with recognizing an action in negligence without proof of damage becomes apparent in considering how such a claim would operate. As the Court of Appeal recognized, a claim for disgorgement available to any plaintiff placed within the ambit of risk generated by the defendant would entitle any one plaintiff to the full gain realized by the defendant. No answer is given as to why any particular plaintiff is entitled to recover the whole of the defendant's gain. Yet, corrective justice, the basis for recovery in tort, demands just that: an explanation as to why the plaintiff is the party entitled to a remedy […] Tort law does not treat plaintiffs "merely as a convenient conduit of social consequences" but rather as "someone to whom damages are owed to correct the wrong suffered" (Weinrib (2000), at p. 6). […]

[195] Justice Brown’s point here was that there must be some justification in the context of tort law, which is corrective and remedial to respond to the plaintiff’s injuries, as to why the plaintiff should be entitled to a gains-based remedy. Justice Brown accepted and recognized that historically a gains-based remedy had been available for some torts under the rubric of waiver of tort and that the plaintiffs’ breach of contract claim for disgorgement would have to be analyzed separately from their tort claim for disgorgement; however, the purported waiver of tort claim was for a remedy for a negligence claim that had not been properly pleaded or pursued. The plaintiffs not only had not pleaded causation of harm for their negligence claim for the alleged failure to warn of addiction and suicidal ideation, they had intentionally adopted a litigation strategy to avoid having to prove damages. There was no justification for a disgorgement remedy in these circumstances.[95]

[196] Returning to the case at bar, if Justice Brown’s analysis is applied to the statutory causes of action under the Competition Act or to the Consumer Protection Act causes of action, disgorgement would not be an available remedy; the claim is doomed to fail. It is doomed to fail for the same reasons that the claim in the Atlantic Lottery case was doomed to fail. There is no connection between disgorgement and the alleged harm suffered by class members from the statutory tort and the Plaintiffs have intentionally adopted a litigation strategy to avoid having to prove damages. Disgorgement is not a cause of action; it is a remedy for certain types of wrongdoing, not including breaches of the consumer protection statutes. In the immediate case, there is no justification for a gains-based remedy; the claim is doomed to fail.

[197] Still addressing the case at bar, the Plaintiffs rely on Justice Brown’s comments in the Atlantic Lottery case about disgorgement for breach of contract in support of their claims for disgorgement and nominal damages for breach of the consumer protection statutes. However, the Plaintiffs misread the case. Justice Brown’s comments lead to the conclusion that it is plain and obvious that the plaintiffs have no viable claims for disgorgement, nominal damages, or punitive damages.

[198] Justice Brown noted that damages are not a constituent element of the cause of action for breach of contract,[96] and he stated that the ordinary remedy for breach of contract is an award of damages measured by placing the plaintiff in the financial position he or she would have been had the contract been performed (the expectation measure of damages).[97] In exceptional circumstances disgorgement has been made available for breach of contract.[98] Justice Brown emphasized that the circumstances must be truly exceptional. For present purposes, the key paragraphs of his judgment are paragraph 57-59, where he wrote:

57. In my view, the key to developing principles for gain-based recovery in breach of contract is to consider what legitimate interest a gain-based award serves to vindicate. A coherent approach that reconciles the relief awarded with the structure of breach of contract as a cause of action should be preferred […] To that end, it is useful to recall that courts have, in some exceptional circumstances, long awarded monetary amounts departing from the ordinary measure of expectation damages. […]

58. […] an award that appears to be measured by a defendant's gain might arguably, in certain circumstances, serve a compensatory purpose that distinguishes it from disgorgement and which therefore tends to support recovery […] Whether viewed as compensatory or not, these cases are indicative of the types of circumstances where a plaintiff is entitled to receive a monetary award that goes beyond the economic position that it would have occupied had its contract been performed […] While the circumstances in which a gain-based award will be appropriate cannot be clearly delineated in advance […], one would expect future legitimate interests protected by a gain-based award to resemble those interests that have been protected in the past.

59 Returning to the present case, and applying the standard articulated in Blake, the plaintiffs' claim for disgorgement is plainly doomed to fail. I say this, first, because disgorgement is available for breach of contract only where, at a minimum, other remedies are inadequate. Circumstances of inadequacy arise when the nature of the claimant's interest is such that it cannot be vindicated by other forms of relief. This may arise where, for example, the plaintiff's loss is "impossible to calculate" or where the plaintiff's interest in performance is not reflected by a purely economic measure […]. Where, as here, the argument is that the quantum of loss is equal to the defendant's gain, but the plaintiff would simply rather pursue disgorgement, a gain-based remedy is not appropriate.

[199] In the immediate case, the Plaintiffs rely on Justice Brown’s comment that disgorgement may be available when other remedies are inadequate, which they say is the situation at the case at bar because they submit that it is now impossible to calculate compensatory damages. This reliance on Justice Brown’s comment is incorrect and misreads Justice Brown’s decision. Justice Brown was not detracting from the exceptional rarity of a disgorgement remedy for breach of contract, and he was referring to the minimum requirements of the normal remedy being inadequate. In the immediate case, it is by design that the Plaintiffs are not choosing the remedy of compensatory damages. It is true that compensatory damages, being entirely idiosyncratic, could not be proven on a class-wide basis, but it is not true that compensatory damages would be inadequate or that it would be impossible to calculate them at an individual issues trial. As Justice Brown noted at paragraph 60 of his judgment: “[C]ompensatory damages are not inadequate merely because a plaintiff is unwilling, or does not have sufficient evidence, to prove loss … inadequacy flows not from the availability of evidence, but from the nature of the claimant's interest. At paragraph 61, he stated:

Disgorgement for breach of contract is exceptional relief; it is not available at the plaintiff's election to obviate matters of proof. And there is nothing exceptional about the breach of contract the plaintiffs allege. Once the allegations of criminal conduct are put aside (given that I determined that they should be struck), the plaintiffs' claim is simply that they paid to play a gambling game and did not get exactly what they paid for. The plaintiffs cannot be said to have a legitimate interest in ALC's profit-making activity.

[200] Atlantic Lottery confirms that the remedy of disgorgement is rare and exceptional in relation to tort and for breach of contract, and disgorgement is not available at the plaintiff’s election to avoid matters of proof. Disgorgement may be available in exceptional circumstances, but it is not a remedial vehicle that enables a plaintiff to sidestep the need to prove that his or her losses were caused by the defendant's wrongful conduct.[99] In the immediate case, if the Plaintiffs as individuals did, as they allege, suffer compensable damages, their strategic choice not to pursue those compensatory damages does not give the plaintiffs or the putative Class Members a legitimate interest in the Defendants’ profit-making activities. Apart from the interpretative argument set out earlier in these Reasons for Decision, normative principles of the law of damages indicate that there is no claim for disgorgement in the immediate case.

[201] There is also no basis for a claim for nominal damages in the immediate case. Nominal damages are associated with breach of contract cases. There is no breach of contract claim in the immediate case. For the same reasons that disgorgement was not available for a breach of the consumer protection statutes, nominal damages are not available. Nominal damages are not a means to avoid making a claim for the compensatory damages that the plaintiffs ironically submit occurred but for which they do not seek. There is no legal justification for the putative Class Members to assert a gains-based remedy.

[202] As a matter of the general law of remedies, it is plain and obvious that the Plaintiffs do not have a claim for restitutionary damages, nominal damages, punitive damages, or disgorgement.

8. The Consumer Protection Claims against Trivago N.V.

[203] Under the consumer protection statutes of British Columbia, Alberta, Saskatchewan, Ontario, and Newfoundland and Labrador, a consumer may bring a civil action against any “supplier” that engaged in or acquiesced in an unfair practice that caused damage or loss. The Plaintiffs, however, have not pleaded material facts to support the allegation that Trivago N.V. is or was a “supplier.”

[204] Trivago N.V. is not a “supplier.” Using for illustration the definition of “supplier” from Ontario’s Consumer Protection Act, 2002, the definition of supplier is: “a person who is in the business of selling, leasing or trading in goods or services or is otherwise in the business of supplying goods or services, […] and includes an agent of the supplier and a person who holds themself out to be a supplier or an agent of the supplier”. Trivago N.V. does not come within this definition. It is not in the business of selling, leasing, trading, or supplying goods or services. It is not the agent of a supplier, and it disavows rather than holds itself out to be a supplier or agent of a supplier.

[205] Moreover, even if there were pleaded facts that Trivago N.V. was a supplier, it did not enter into a “consumer agreement” and, therefore, there is no cause of action against Trivago N.V. under the consumer protection statutes that require privity of contract or that require a consumer agreement. In Ontario, Prince Edward Island, and Newfoundland and Labrador, privity of contract is required for claims of unfair practices under the consumer protection statutes.[100]

[206] Using for illustration the definition of “consumer agreement” from Ontario’s Consumer Protection Act, 2002, a consumer agreement is between a supplier and a consumer in which “the supplier agrees to supply goods or services for payment.” Assuming that Trivago N.V. is a supplier, it does not enter into agreements to supply a good or service for payment. Rather, Trivago N.V. provides a price comparison platform to users free of charge. Trivago N.V. is not involved in the actual process of booking accommodation, which is the “consumer agreement” that connects to the Plaintiffs’ and the Class Members’ claims for restitution, nominal damages, punitive damages and the remedy of disgorgement. Trivago N.V. is not the agent for the Accommodation Providers, and it is not the agent for Expedia and Bookings, which is transparently made out in Trivago N.V.’s Terms of Use.

[207] Trivago’s Terms of Use do not create privity of contract in relation to the “consumer agreements” on which the plaintiffs base their damages claims. As Justice Strathy, as he then was, explained in Singer v. Schering-Plough Canada Inc.,[101] a claim under the Consumer Protection Act, 2002 is against a “supplier” with whom the consumer contracted for “goods and services for payment.” Trivago N.V. did not contract with Class Members to supply services for payment.

[208] Trivago N.V. is also not jointly and severally liable under s. 18 (2) of Ontario’s Consumer Protection Act, 2002 with Expedia and Bookings since the joint liability provisions apply to suppliers and agents of suppliers who engaged in an unfair practice but for the reasons set out above the Consumer Protection Act, 2002 does not apply to Trivago N.V. which is not a supplier.

[209] Further still, there is no cause of action for unfair practices in Nova Scotia’s or the Northwest Territories’ or Nunavut’s consumer protection legislation.[102]

[210] It is plain and obvious that the Plaintiffs’ claims against Trivago for contravention of the consumer protection statutes are bound to fail and the cause of action criterion for certification is not satisfied for the putative Class Members from British Columbia, Alberta, Saskatchewan, Ontario, Prince Edward Island, Newfoundland and Labrador, Northwest Territories, and Nunavut.

H. The Compensatory Injury Principle

[211] Independent of the proposed class action’s failure to satisfy the cause of action criterion, the action is not certifiable as a class action because there is no basis in fact that two or more putative Class Members suffered compensatory harm; being dissuaded from choosing more psychologically-economically satisfying accommodation is not a type of compensatory harm.

[212] It has been for a long time, and it continues to be a fundamental principle that for an action to be certified as a class proceeding there must be some evidence that two or more putative Class Members suffered compensatory harm.[103] In particular, where the core claim is for damages, there must be some evidence of compensable loss and a plausible methodology grounded in the facts of the case (not purely theoretical or hypothetical) absent which the action will not be certified.[104] In the immediate case, the Defendants argue there is no evidence that two or more putative Class Members suffered compensatory harm. For the reasons that follow, I agree with the Defendants.

[213] The explanation may begin by assuming that Dr. Duke’s opinion is correct and that from a factual perspective, the putative Class Members suffered some type of harm. With this assumption, the next question is whether this type of harm is compensable from a legal perspective. And, in the immediate case, the answer to that question is no.

[214] Assuming that the Plaintiffs are correct that the representations and business practices of the Defendants had the potential to cause harm of the type described by Dr. Duke, it should be recalled that there is no economic component to this harm that can be plausibly or feasibly calculated, and the Plaintiffs make no effort to provide proof or a methodology for determining the quantification of the economic damages for the class. The remedies sought in the immediate case are sought for an injury suffered without having caused harm to person or property. The harm in the immediate case is the psychiatric harm of after-the-fact decision regret and disappointment because of what might have been the putative Class Member’s accommodation if he or she had received differently ordered information about available accommodation. This type of harm is not certifiable because whatever type of harm it is, it is plain and obvious that it is not compensable harm. The harm suffered in the immediate case is some form of mental harm. It is plain and obvious that this harm is not compensable damages in tort or in contract.

[215] As a matter of tort law, in Mustapha v. Culligan of Canada Ltd.[105] and in Saadati v. Moorhead,[106] the Supreme Court of Canada established the general approach of the law with respect to damages for psychological harm in tort. After Saadati v. Moorhead to establish a compensatory psychological injury, the claimant need not prove that he or she was suffering a recognized psychiatric illness. Rather, the claimant needs to prove that as a result of the defendant’s wrongdoing, he or she suffered a mental disturbance that is serious and prolonged and that rises above the ordinary annoyances, anxieties and fears that come with living in civil society. No such harm is pleaded in the immediate case.

[216] In Richardson v. Samsung Electronics Canada Inc.,[107] which was a proposed class action brought on behalf of consumers who purchased a smartphone with defective batteries, the plaintiff alleged, among other things, that the defendant had breached Ontario’s Consumer Protection Act, 2002. Justice Rady dismissed the certification motion for several reasons. One of the reasons was that the class member’s pain and suffering damages claim required a threshold beyond mere upset, disgust, anxiety and agitation, and required physical or psychological injury and the evidence did not pass the threshold. The case at bar is similar and there is no evidence that two or more putative Class Members suffered a mental harm that passes the threshold to be compensable.

[217] As a matter of contract law, the treatment of mental harm has developed over the centuries, but the putative Class Members have not pleaded and could not plead the material facts that would support compensable damages for the harm they suffered as described by Dr. Duke.

[218] The first or original stage of the law of contract with respect to damages for mental harm was to refuse to award damages for mental harm from a breach of contract.[108] In the second stage, in large part because of Lord Denning’s judgment in Jarvis v. Swans Tours Ltd.[109] the original position was modified to be a general principle that admitted of exceptions where the contract that was breached was a contract for pleasure, relaxation, or peace of mind or where pleasure, relaxation, or peace of mind was an important object of the contract.[110] In the third stage, in Canada, in Vorvis v. Insurance Corp. of British Columbia,[111] the Supreme Court of Canada developed the new general principle that mental distress damages could be awarded for breach of contract where the parties contemplated at the time contracting that a breach of the promises of the contract would cause a plaintiff mental distress.[112] In the fourth stage, which represents the contemporary law, the Supreme Court in Fidler v. Sun Life Assurance Co. of Canada,[113] concluded that damages for mental harm from a breach of contract should be brought within the general and venerable principles of compensatory damages for breach of contract which are that: (a) damages for breach of contract should, as far as money can do it, place the plaintiff in the same position as if the contract had been performed; and (b) these damages must be such as may fairly and reasonably be considered either arising naturally from the breach of the contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties.[114]

[219] In Fidler v. Sun Life Assurance Co. of Canada, which concerned a disability insurance policy, Chief Justice McLachlin and Justice Abella (Justices Bastarache, Binnie, LeBel, Deschamps, Fish, and Charron concurring) stated at paragraphs 44 - 47 of their judgment for the court:

44. We conclude that damages for mental distress for breach of contract may, in appropriate cases, be awarded as an application of the principle in Hadley v. Baxendale: see Vorvis. The court should ask "what did the contract promise?" and provide compensation for those promises. The aim of compensatory damages is to restore the wronged party to the position he or she would have been in had the contract not been broken. As the Privy Council stated in Wertheim v. Chicoutimi Pulp Co., [1911] A.C. 301, at p. 307: "the party complaining should, so far as it can be done by money, be placed in the same position as he would have been in if the contract had been performed". The measure of these damages is, of course, subject to remoteness principles. There is no reason why this should not include damages for mental distress, where such damages were in the reasonable contemplation of the parties at the time the contract was made. This conclusion follows from the basic principle of compensatory contractual damages: that the parties are to be restored to the position they contracted for, whether tangible or intangible. The law's task is simply to provide the benefits contracted for, whatever their nature, if they were in the reasonable contemplation of the parties.

45. It does not follow, however, that all mental distress associated with a breach of contract is compensable. In normal commercial contracts, the likelihood of a breach of contract causing mental distress is not ordinarily within the reasonable contemplation of the parties. It is not unusual that a breach of contract will leave the wronged party feeling frustrated or angry. The law does not award damages for such incidental frustration. The matter is otherwise, however, when the parties enter into a contract, an object of which is to secure a particular psychological benefit. In such a case, damages arising from such mental distress should in principle be recoverable where they are established on the evidence and shown to have been within the reasonable contemplation of the parties at the time the contract was made. The basic principles of contract damages do not cease to operate merely because what is promised is an intangible, like mental security.

This conclusion is supported by the policy considerations that have led the law to eschew damages for mental suffering in commercial contracts. As discussed above, this reluctance rests on two policy considerations -- the minimal nature of the mental suffering and the fact that in commercial matters, mental suffering on breach is "not in the contemplation of the parties as part of the business risk of the transaction": McGregor on Damages, at p. 63. [page21] Neither applies to contracts where promised mental security or satisfaction is part of the risk for which the parties contracted.

47. This does not obviate the requirement that a plaintiff prove his or her loss. The court must be satisfied: (1) that an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties; and (2) that the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation. These questions require sensitivity to the particular facts of each case.

[220] In the immediate case, there is no basis in fact that the Plaintiffs suffered a compensable psychological harm. There is no basis in fact for concluding that the putative Class Members suffered a compensable psychological harm that would be compensable in tort. There is no basis in fact for concluding that a putative Class Members suffered a compensable psychological harm that would be compensable in contract. The contract in the immediate case to the extent that one existed between the putative Class Members and the Defendants was a contract for which there was no payment, the putative Class Member was provided with information about accommodation and the putative Class Member made its own decision about the accommodation. The contracts with the Defendants are not per se contract about pleasure, relaxation, or peace of mind. The contract with the Accommodation Provider would be a contract for those purposes assuming that the accommodation was for a holiday or pleasure trip (not all consumer travel is for the purpose of pleasure).

[221] In the immediate case, the contracts with the Defendants were not contracts in which a court could be satisfied that an objective of the contract was to secure a psychological benefit. In the immediate case, the contracts with the Defendants were not contracts where the degree of mental suffering caused by a breach would not be sufficient to warrant compensation. In the immediate case, at the time the putative Class Members entered into a contract with the Defendants, the putative Class Members would not have reasonably contemplated that they should be compensated for the mental distress of the disappointment of missing an opportunity for other accommodation when they had no complaints about the accommodation they did enjoy.

[222] In so far as compensable harm is concerned, the case at bar is similar to Mackinnon v. Volkswagen Group Canada Ltd.,[115] which was a proposed class action on behalf of persons who had formerly leased Volkswagen vehicles with diesel engines. Years after the leases were over and the vehicles returned to the lessor, the putative Class Members learned that during the time of their leasing, the vehicles had been equipped with devices that hid the truth that the vehicles contravened clean air laws. The Representative Plaintiff deposed that after he learned of the existence of the “defeat devices,” he was upset. He felt deceived. He was extremely disappointed in knowing that he had been driving a vehicle that polluted the atmosphere. He deposed that he would not have leased a vehicle that did not comply with environmental emissions regulations. He deposed that had he known then what he knew now, he would have leased a less expensive gasoline powered vehicle rather than a diesel fuel vehicle.

[223] In the Mackinnon case, there was no claims for physical or mental personal injury or for damage to property or for the repair of property. The damages claimed on behalf of the putative Class Members were based on the theory that the putative Class Members were harmed because they leased a vehicle misrepresented to be a low emissions and an “environmentally clean” vehicle. The putative Class Members’ claims were founded on negligent misrepresentation, negligence, conspiracy, breach of warranty, breach of provincial consumer protection legislation, breach of federal misleading advertising legislation and unjust enrichment. Although Justice Belobaba accepted that the putative Class Members did not receive the vehicles as promised and as represented to them, he dismissed the plaintiff’s motion for certification because there was no evidence of a compensable loss and a plausible methodology for calculating the Class Members loss-related claims. It followed that the plaintiff was unable to show some basis in fact for the identifiable class, common issues, preferable procedure, and representative plaintiff criteria of the test for certification.

[224] In the immediate case, even it is assumed that there was a misrepresentation or an unfair or unconscionable practice and a contravention of the Competition Act or of the consumer protection statutes, all there is Dr. Duke’s purely theoretical and hypothetical opinion that there is harm, but that harm is not compensable harm. In the immediate case, rather than providing a plausible methodology for calculating the compensation for the alleged harm, Class Counsel, in effect concedes that a methodology is neither plausible nor feasible for the losses opined by Dr. Duke. As was the situation in Mackinnon v. Volkswagen Group Canada Ltd., this type of claim is not certifiable. Moreover, it follows that there is no basis in fact that that two or more putative Class Members suffered compensatory harm. Thus, the case at bar offends the principle that for an action to be certified as a class proceeding there must be some evidence that two or more putative Class Members suffered compensatory harm.

I. Identifiable Class Criterion

1. General Principles

[225] The second certification criterion is the identifiable class criterion. The definition of an identifiable class serves three purposes: (1) it identifies the persons who have a potential claim against the defendant; (2) it defines the parameters of the lawsuit so as to identify those persons bound by the result of the action; and (3) it describes who is entitled to notice.[116]

[226] In defining the persons who have a potential claim against the defendant, there must be a rational relationship between the class, the cause of action, and the common issues, and the class must not be unnecessarily broad or over-inclusive.[117] An over-inclusive class definition binds persons who ought not to be bound by judgment or by settlement, be that judgment or settlement favourable or unfavourable.[118] The rationale for avoiding over-inclusiveness is to ensure that litigation is confined to the parties joined by the claims and the common issues that arise.[119] A proposed class definition, however, is not overbroad because it may include persons who ultimately will not have a successful claim against the defendants.[120]

[227] The class must also not be unnecessarily narrow or under-inclusive. A class should not be defined wider than necessary, and where the class could be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended.[121]

2. Discussion and Analysis – Identifiable Class Criterion

[228] As explained above, the Plaintiffs do not satisfy the cause of action criterion and the principle that there must be two or more putative Class Members who suffered compensable harm. As explained below, the Plaintiffs do not satisfy the preferable procedure criteria. With these criteria being unsatisfied, it is moot whether the Plaintiffs satisfy the identifiable class criterion. However, since there may be an appeal and assuming that on the appeal, the other criteria for certification would be found to have been satisfied, in my opinion - subject to amendments to the Class Period - the identifiable class criterion would be satisfied.

[229] In this regard, I disagree with the Defendants’ submission that the class cannot be defined absent individual inquiries of the Class Members because the Defendants have no means to determine what bookings were made for a business purpose, a leisure purpose, or some other purpose. For the purposes of defining the class, it is not necessary for the Defendants to have this means of knowledge. If there was a judgment to be shared or an individual issues trial, individual class members would have to qualify as consumers, but that is not a matter for determining the definition of the class.

[230] The class definition is largely about self-identification. For the purposes of class definition, all that is necessary is that the Class Members know whether they have a potential claim, and it is not even necessary that they know whether it is a provable claim or a claim worth pursuing. A class definition is not a merits-based definition. In the immediate case, the Class Members will know whether or not they were travelling for non-business purposes and thus whether they have a plausible claim against the Defendants.

[231] What is relevant in the immediate case to the class definition criterion is the matter of how limitation period defences may be relevant to the formulation of the class definition. Turning to the matter of the limitation periods, as presently articulated, the class definition uses the fifteen year ultimate limitation period of the Ontario Consumer Protection Act, 2002.

[232] The problem with that definition is that the Class Period is too long in beginning in 2005 for all Class Members. Following my own judgment in Magill v. Expedia Canada Corporation,[122] the presumptive limitation of the Limitations Act, 2002 applies class wide. It applies class wide because all of the Class Members ought to have known that there was reason to believe that they had a cause of action against the Defendants within two years of their use of the Defendants’ search engines.

[233] Given the two-year basic limitation period for the formation of objective discovery of the claim, the class period can be defined as two-years (the presumptive basic limitation period) before the commencement of the proposed class action. The presumptive basic limitation period for Ontario consumers is two years, and thus for Ontario Class Members, the Class Period would begin on September 30, 2018. If the presumptive limitation for some of the other provinces and territories is different, then the Class Period would have to be adjusted accordingly. This approach has been adopted in other cases.[123]

[234] To be fair, there are other cases where the approach of the court is to leave the operation of the discovery principle to individual issues trials, an approach not available in the immediate case because the design of the Plaintiffs’ proposed class action eschews an individual issues stage of the proceeding.

[235] Also, to be fair, it must be observed that the operation of basic limitation periods in circumstances like those of the immediate case is a complex and somewhat surreal problem. Once again because there may be appeal of this decision, it is necessary to elaborate on my analysis of how the deemed discovery principle operates under Ontario’s Consumer Protection Act, 2002 in cases like the immediate case.

[236] The relevant provisions of the Limitations Act, 2002 are sections 1, 4, and 5 of Ontario's Limitations Act, 2002, which are set out below:

Definitions

1. In this Act,

“claim” means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission; ….

BASIC LIMITATION PERIOD

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[237] Prior to the enactment of s. 5(1)(a)(iv) of the Limitations Act, 2002, the judge-made discoverability principle governed the commencement of a limitation period. The discoverability principle stipulated that a limitation period begins to run only after the plaintiff has the knowledge, or the means of acquiring the knowledge, of the existence of the facts that would support a claim for relief.[124] The discoverability principle conforms with the idea of a cause of action being the fact or facts which give a person a right to judicial redress or relief against another.[125]

[238] Subject to the adjustment made by s. 5(1)(a)(iv), which adds the element that a proceeding is an appropriate means to seek a remedy, the basic limitation period of two years under the Limitations Act, 2002, a claim is “discovered” on the earlier of the date the claimant knew - a subjective criterion - or ought to have known; had the means of knowing - a modified objective criterion - about the claim.[126]

[239] Under the discoverability principle, a limitation period commences when the plaintiff subjectively discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence.[127] When a reasonable person with the abilities and in the circumstances of the plaintiff would acquire facts to become knowledgeable about the claim, the limitation period does not stop running if the plaintiff takes no steps to investigate whether he or she has a claim.[128]

[240] The modified objective test applies only if a plaintiff does not have actual subjective knowledge of the claim.[129] The date upon which the plaintiff can be said to be in receipt of sufficient information to cause the limitation period to commence will depend on the circumstances of each particular case; it is a fact-based analysis.[130] What a reasonable person in the same or similar circumstances of the plaintiff knew or ought to have known is a question of fact.[131]

[241] Pursuant to s. 5(2) of the Limitations Act, 2002, unless the contrary is proven, it is presumed that a claimant will know of the matters of his or her claim on the day that the act or omission took place. When a limitation period defence is raised, - the onus is on the plaintiff - to provide evidence to show that its claim is not statute-barred and that he or she behaved as a reasonable person in the same or similar circumstances using reasonable diligence in discovering the facts relating to the limitation issue.[132] Discovery means knowledge of the facts that may give rise to the claim, and the knowledge required to start the limitation period is more than suspicion and less than perfect knowledge.[133] If the plaintiff does know "enough facts", which means knowing the material facts, the claim is discovered and the limitation period begins to run.[134]

[242] Ignorance of the law does not postpone the commencement of the limitation period; if the claimant knows or ought to know the constituent elements of his or her cause of action, the circumstance that he or she may not appreciate the legal significance of the facts does not postpone the running of the limitation period.[135] Similarly, knowledge of the full extent of the damages is not required to trigger a limitation period.[136]

[243] The discovery of a claim does not depend upon the plaintiff knowing that his or her claim is likely to succeed, which is the matter that will be determined by his or her lawsuit;[137] the limitation period runs from when the prospective plaintiff has or ought to have had, knowledge of a potential claim,[138] and the later discovery of facts which change a borderline claim into a viable one does not give rise to the discoverability principle.[139] For the limitation period to begin to run, a plaintiff need not know the exact act or omission that caused him or her to suffer a loss; all that the plaintiff need know is that the defendant committed some act or omission that cause the loss or damage.[140] For the limitation period to begin to run, it is not necessary that the plaintiff know the full extent or quantification of his or her damages; rather, the period begins to run with the plaintiff’s subjective or objective appreciation of being damaged, i.e., of being worse off than before the defendant’s conduct.[141] For the limitation period to begin to run, it is enough for the plaintiff to have prima facie factual grounds to infer that the defendant caused him or her harm, and certainty of a defendant’s liability for the act or omission that caused or contributed to the loss is not a requirement.[142]

[244] In Grant Thornton LLP v. New Brunswick,[143] which concerns New Brunswick’s Limitation of Actions Act,[144] which has statutory language that is similar to sections 4 and 5 of Ontario's Limitations Act, 2002, Justice Moldaver, for the Supreme Court, discussed the measure of knowledge necessary to begin the commencement of a limitation period, and he stated at paragraph 42 that a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a “plausible inference of liability” on the defendant's part can be drawn. The Grant Thornton LLP decision has been adopted and followed in Ontario.[145]

[245] At paragraphs 45-47 of the judgment, Justice Moldaver illuminated the meaning of plausible inference of liability as follows:

45. Finally, the governing standard requires the plaintiff to be able to draw a plausible inference of liability on the part of the defendant from the material facts that are actually or constructively known. In this particular context, determining whether a plausible inference of liability can be drawn from the material facts that are known is the same assessment as determining whether a plaintiff "had all of the material facts necessary to determine that [it] had prima facie grounds for inferring [liability on the part of the defendant]" (Brown v. Wahl, 2015 ONCA 778, 128 O.R. (3d) 583, at para. 7; see also para. 8, quoting Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75, at para. 30). […]

46. The plausible inference of liability requirement ensures that the degree of knowledge needed to discover a claim is more than mere suspicion or speculation. This accords with the principles underlying the discoverability rule, which recognize that it is unfair to deprive a plaintiff from bringing a claim before it can reasonably be expected to know the claim exists. At the same time, requiring a plausible inference of liability ensures the standard does not rise so high as to require certainty of liability (Kowal v. Shyiak, 2012 ONCA 512, 296 O.A.C. 352) or "perfect knowledge" (De Shazo, at para. 31; see also the concept of "perfect certainty" in Hill v. South Alberta Land Registration District (1993), 1993 ABCA 75, 8 Alta. L.R. (3d) 379, at para. 8). Indeed, it is well established that a plaintiff does not need to know the exact extent or type of harm it has suffered, or the precise cause of its injury, in order for a limitation period to run (HOOPP Realty Inc. v. Emery Jamieson LLP, 2018 ABQB 276, 27 C.P.C. (8th) 83, at para. 213, citing Peixeiro, at para. 18).

[246] Applying this law about the operation of limitation periods to the circumstances of the immediate case, leads to the following analysis.

[247] Pursuant to s. 5 (2) of the Limitations Act, 2002, unless the contrary is proven, it is presumed that each and every putative Class Member knew the material facts of his or her claim on the day that the act or omission took place, which, in the immediate case, would be when the putative Class Member was deceived and misled by the Defendants’ search result reports.

[248] To prove the contrary to s. 5(2) of the Limitations Act, 2002, each and every Class Member would have to prove that he or she did not have subjective or objective knowledge of enough material facts to prosecute the statutory cause of action under the Consumer Protection Act, 2002 as of the date at which he or she was misled by using the Defendants’ search engine.

[249] In the immediate case, the onus is on each and every Class Member to refute that they did not have subjective or objective knowledge of enough material facts. However, in the immediate case, each and every Class Member cannot meet this onus because they do not plan to do so. The design of the class action is that they will not expose themselves to individual issues trials to determine when they discovered their claims. The onus is on each and every Class Member to refute the presumption of s. 5 (2) and they do not and will not by their own choice meet the onus. It follows that on a class-wide basis the presumption of s. 5 (2) is not refuted.

[250] In the immediate case, even if it was assumed that there is some basis in fact for each and every putative Class Member proving that he or she did not have subjective knowledge of the material facts to pursue the statutory cause of action, it may be concluded that on a class-wide basis that each and every putative Class Member ought to have known that they had a claim for breach of the misrepresentation and unfair practices provisions of the Consumer Protection Act, 2002.

[251] The putative Class Members argument to the contrary is that their claim could not have been discovered until Class Counsel was retained or experts were obtained to opine about how the search results have been wrongfully manipulated by the search algorithm or to advise them about the inadequacy of the Defendants’ disclosure of how the search engines rank the information. The fatal flaw in that argument, however, is that it would appear that each and every class member took no steps to acquire facts to become knowledgeable about the claim until Class Counsel were retained, but the limitation period does not stop running if the plaintiff takes no steps to investigate whether he or she has a claim.

[252] Put somewhat differently, and using Mr. Storey as an illustration, he used the Defendants’ websites for over a decade, but he allegedly discovered his claim when he retained putative Class Counsel, which is something that he could have done ten years earlier than he did. In the case at bar, had he put his mind to it, Mr. Storey knew all he needed to know to sue Expedia, Bookings, or Trivago N.V. at the time of the search results. Nothing has changed other than the legal advice of Class Counsel that there is a claim, but ignorance of the law applicable to the facts does not preclude the running of a limitation period.

[253] The analysis of the running of limitation periods and its effect on the class definition may be approached from another direction by adding the matter of the notice provisions of the Ontario Consumer Protection Act, 2002 to the analysis. Section 18 (3) of the Act bolsters the idea that the Legislatures’ intent was that claims under the Act must not be delayed much beyond the occurrence of the unfair practice. Section 18 (3) of the Act requires a consumer to give notice of his or her intention to rescind an agreement pursuant to s. 18 (1) of the Act, which is a prerequisite to a claim for damages under s. 18 (2) within one year of the alleged unfair practice. There is no evidence that any putative Class Member, including Mr. Hoy or Mr. Storey gave notice. It is conceivable that pursuant to s. 18 (15) of the Act, that a court would waive the notice requirement for claims two years prior to the commencement of a class action as being in the interests of justice, but it is difficult to conceive how it is in the interests of justice and consistent with the legislative intention that unfair practice claims be brought in a timely way to waive the notice for claims extending fifteen years prior to the commencement of the class action.

[254] In the case at bar, the Plaintiffs have not provided any evidence apart from alleged contraventions of the Act to explain why it would be in the interests of justice to allow them to prosecute 15-year-old claims. As was the case in Magill v. Expedia, Inc.,[146] it is not in the interests of justice to waive the notice requirement for claims relating to a allegedly unfair practices when no claim for compensatory harm is actually being pursued and where the psychological harm that was suffered does not qualify as compensable harm and where the consumer has no complaint about the accommodation he or she experienced apart from the complaint that he or she might have chosen some other accommodation that was more pleasurable.

J. Common Issues Criterion

1. General Principles

[255] The third criterion for certification is the common issues criterion. For an issue to be a common issue, it must be a substantial ingredient of each class member’s claim and its resolution must be necessary to the resolution of each class member’s claim.[147]

[256] The underlying foundation of a common issue is whether its resolution will avoid duplication of fact-finding or legal analysis of an issue that is a substantial ingredient of each class member’s claim and thereby facilitate judicial economy and access to justice.[148]

[257] An issue is not a common issue if its resolution is dependent upon individual findings of fact that would have to be made for each class member.[149] Common issues cannot be dependent upon findings which will have to be made at individual trials, nor can they be based on assumptions that circumvent the necessity for individual inquiries.[150] All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent. The answer to a question raised by a common issue for the plaintiff must be capable of extrapolation, in the same manner, to each member of the class.[151]

[258] The common issue criterion presents a low bar.[152] An issue can be a common issue even if it makes up a very limited aspect of the liability question and even though many individual issues remain to be decided after its resolution.[153] Even a significant level of individuality does not preclude a finding of commonality.[154]A common issue need not dispose of the litigation; it is sufficient if it is an issue of fact or law common to all claims and its resolution will advance the litigation.[155]

[259] From a factual perspective, the plaintiff must show that there is some basis in fact that: (a) the proposed common issue actually exists; and (b) the proposed issue can be answered in common across the entire class, which is to say that the Plaintiff must adduce some evidence demonstrating that there is a colourable claim or a rational connection between the Class Members and the proposed common issues.[156] The plaintiff must establish some basis in fact for the existence of the common issues in the sense that there is some factual basis for the claims made to which the common issues are connected.[157]

2. Discussion and Analysis – Common Issues Criterion

[260] For the reasons discussed above, the proposed class action does not satisfy the clause of action criterion. It follows that none of the other certification criterion can be satisfied. Therefore, save for two questions, about which I shall be brief, I shall not analyze whether the questions proposed by the Plaintiffs satisfy the common issues criterion.

[261] First, because I said that I would return to the matter of punitive damages to complete the analysis of the cause of action criterion, I will address the question about punitive damages in the context of the common issues criterion.

[262] Second, because it bears on the issue of the preferable procedure criterion, and because it also is related to the discussion above about the cause of action criterion, I shall also address the question about aggregate damages in the context of the common issues criterion.

(a) Punitive Damages as a Common Issue

[263] The Plaintiffs propose the following common issue about punitive damages: “Are the Defendants, or any of them, liable to pay punitive damages to the Class members, having regard to the nature of their conduct, and if so, what is the amount of punitive damages?”

[264] Earlier in this decision, I concluded that the claim for punitive damages does not satisfy the cause of action criterion. Assuming I was mistaken in that regard, and because my decision may be appealed, I will address the matter of whether in the immediate case punitive damages is a certifiable common issue.

[265] In my opinion, in the immediate case, the question about punitive damages does not satisfy the common issues criteria for three reasons.

[266] The first reason is that the issue is not common to the putative Class Members and would depend on the outcome of the individual issues trial.

[267] The second reason is that apart from the question about punitive damages, there are no certifiable common issues. Standing alone, a punitive damages question does not provide a basis for a class action. A common issue questions about punitive damages is not certifiable in the absence of other certifiable common issues.[158] If punitive damages was suitable as a common issue it could not bootstrap the certification of a proceeding that is otherwise unsuitable.[159]

[268] The third reason why punitive damages should not be certified as a common issue follows the lead of the British Columbia Court of Appeal and several of my own decisions, that held that it is often premature to make the determination of whether punitive damages is certifiable at the time of the certification motion. These authorities hold that the determination of whether punitive damages or possible liability for punitive damages is common to the class should be determined at the common issues trial after examinations for discovery and the production of documents.[160]

[269] This line of authorities establishes the principle that for punitive damages to be a common issue there must be some basis in fact beyond the allegations of wrongdoing in the Statement of Claim that would ground the claim for punitive damages being certified as a common issue. In the immediate case, as I explained earlier in this decision, the Plaintiffs rely only on the allegations that the Defendants breached the consumer protection statutes as the basis for the remedy of punitive damages. This is insufficient to certify punitive damages as a common issue.

[270] I, therefore, conclude that in any event, punitive damages cannot be certified as a common issue.

(b) Aggregate Damages as a Common Issue

[271] Because I think it is relevant to the discussion above about available remedies in the case at bar and because it bears on the preferable procedure criterion analysis in the next section of my Reasons for Decision, I address the matter of aggregate damages as a common issue. The possibility of an aggregate damages award at the common issues trials bears on the preferable procedure analysis because the availability of aggregate damages immediately serves the purposes of a class proceeding of access to justice, behaviour modification, and judicial economy and the availability of aggregate damages may dispose of the litigation without individual issues assessments.

[272] Under s. 24 (1) of the Class Proceedings Act, 1992, a court may award aggregate damages where: (i) monetary relief is claimed on behalf of some or all class members; (ii) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined; and (iii) the aggregate or a part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members. A plaintiff must be able to prove all the elements of his or cause of action at the common issues trial to have a common issue about aggregate damages.[161] For there to be an award of aggregate damages, the plaintiff must advance a methodology or show that there is a reasonable likelihood of assessing the defendant’s aggregate liability to the class without proof by individual class members.

[273] In the immediate case, the Plaintiffs did not design their proposed class action to claim the damages that are available under the Competition Act or under the consumer protection statutes, and they conceded that aggregate damages would not be a common issue had they made claims for the conventional remedies available under those statutes. As noted above, the Plaintiffs did not provide any methodology to calculate aggregate damages for compensatory claims under the Competition Act or under the consumer protection.

[274] For the reasons expressed above with respect to the cause of action criterion, aggregate damages awards based on the remedies of restitutionary damages, nominal damages, or disgorgement are not available because those remedies are not available.

[275] I, therefore, conclude that in any event, aggregate damages cannot be certified as a common issue.

K. Preferable Procedure Criterion

1. General Principles

[276] Under the Class Proceedings Act, 1992, the fourth criterion for certification is the preferable procedure criterion. Preferability captures the ideas of: (a) whether a class proceeding would be an appropriate method of advancing the claims of the class members; and (b) whether a class proceeding would be better than other methods such as joinder, test cases, consolidation, and any other means of resolving the dispute.[162]

[277] In AIC Limited v. Fischer,[163] the Supreme Court of Canada emphasized that the preferability analysis must be conducted through the lens of judicial economy, behaviour modification, and access to justice. Thus, for a class proceeding to be the preferable procedure for the resolution of the claims of a given class, it must represent a fair, efficient, and manageable procedure that is preferable to any alternative method of resolving the claims.[164] Whether a class proceeding is the preferable procedure is judged by reference to the purposes of access to justice, behaviour modification, and judicial economy and by taking into account the importance of the common issues to the claims as a whole, including the individual issues.[165] To satisfy the preferable procedure criterion, the proposed representative plaintiff must show some basis in fact that the proposed class action would: (a) be a fair, efficient and manageable method of advancing the claim; (b) be preferable to any other reasonably available means of resolving the class members’ claims; and (c) facilitate the three principal goals of class proceedings; namely: judicial economy, behaviour modification, and access to justice.[166]

2. Discussion and Analysis – Preferable Procedure Criterion

[278] There are four reasons why the preferable procedure criterion is not satisfied in this case.

[279] First, it is axiomatic that if the cause of action and or the common issues criterion are not satisfied, the preferable procedure criterion is not satisfied.[167] That precisely is the situation in the immediate case.

[280] Second, this particular proposed class action would not be a fair, efficient, and manageable method of advancing the Class Members’ claims. Assuming the multiplicity of changes to the Defendants’ algorithms could be managed and even if the Plaintiffs were able to prove breaches of the Competition Act or the consumer protection statutes at the common issues trial, there is no basis in law for an aggregate damages award. At best, a successful common issues trial would bring the Class Members to individual issues trials, but the plan of the Plaintiffs is to avoid individual issues trials where Class Members would be exposed to a costs award if they lose, and where they would be faced with the task of proving the compensatory harm that the Plaintiffs submit exists but that they have by design decided not to make the purpose of the class action. As designed, the proposed class action is a dead end at the common issues trial.

[281] Third, assuming the other certification criterion were satisfied, the preferable procedure criterion is satisfied only if the proceedings advance the goals of access to justice, behaviour modification, and judicial economy;[168] however, in the immediate case, there is no access to justice concerns because there must be some evidence that two or more putative Class Members suffered compensatory harm, but, as explained above, this principle is not satisfied in the immediate case. A class action where there is no evidence of compensatory harm suffered by the Class Members is a waste of judicial resources.[169]

[282] Fourth, the Plaintiffs’ argument that a class proceeding is necessarily in the immediate case to obtain behaviour modification is without merit. Sometimes, it is for the regulator to act in the public interest to modify the behaviour of a defendant that is breaching its statutory obligations. In this regard, it may be noted that each of the Defendants is liable to a $250,000 fine for breaches of the Consumer Protection Act, 2002 and the Provincial Offences Act court is empowered in addition to any other penalty, to order the corporation convicted to pay compensation or make restitution (See sections 116 and 117 of the Act.)

[283] I agree with Justice Belobaba’s observation at paragraph 26 of his judgment in Maginnis v. FCA Canada Inc.2020 ONSC 5462, where he stated:[170]

26. If the plaintiffs’ concern is not their vehicles’ reduced trade-in value … but the fact that their “dirty diesel” vehicles were polluting the environment for several years before FCA offered the repair, that is a commendable concern. But absent compensatory harm, the policing and enforcement of environmental protection regulations are a matter for public regulatory authorities, not private action.

[284] Justice Strathy, as he then was, made a similar observation at paragraphs 206 and 207 of his decision in Singer v. ScheringPlough Canada Inc.,[171] where he stated:

206 [....] I am not even satisfied that Mr. Singer has a real complaint or that he has suffered any damages, but if he wishes to make a point of principle, it could be appropriately pursued in the Small Claims Court or as a test case. […] Those actions are likely to be more effectively and efficiently prosecuted based on individual allegations of reliance and damages.

207 […] there is an appropriate statutory and regulatory regime in place concerning the labeling and advertising of sunscreen products. That regime considers scientific evidence concerning the efficacy of sunscreen products and determines what representations can appropriately be made about each product. If there are concerns about representations made concerning specific products, those concerns can be addressed to the regulator. There is, therefore, a built-in behaviour modification process. To the extent that the plaintiff believes that there have been transgressions that require sanctions, complaints can be directed to the appropriate regulators under the Food and Drugs Act and the Competition Act.

[285] In the immediate case, if the behaviour of the Defendants ought to be stopped because of the alleged harm to the economy or to individual consumers, then the preferable procedure is action by the regulators or individual actions by consumers who genuinely suffered a loss that is compensable in law. The preferable procedure is not a class action.

[286] I, therefore, conclude that the preferable procedure criterion is not satisfied in the case at bar.

L. Representative Plaintiff Criterion (s. 5 (1)(e))

1. General Principles – Representative Plaintiff Criterion

[287] The fifth and final criterion for certification as a class action is that there is a representative plaintiff who would adequately represent the interests of the class without conflict of interest and who has produced a workable litigation plan. The representative plaintiff must be a member of the class asserting claims against the defendant, which is to say that the representative plaintiff must have a claim that is a genuine representation of the claims of the members of the class to be represented or that the representative plaintiff must be capable of asserting a claim on behalf of all of the class members as against the defendant.[172]

2. Discussion and Analysis – Representative Plaintiff Criterion

[288] As explained above, the Plaintiffs do not satisfy the cause of action and the preferable procedure criteria. With these criteria being unsatisfied, it is moot whether the Plaintiffs satisfy the representative plaintiff criterion. However, since there may be an appeal and assuming that on the appeal, these criteria for certification were to be found to have been satisfied, in my opinion, the representative plaintiff criterion is satisfied.

[289] Trivago N.V. relied on the Ragoonanan principle that in order to certify a class action against a defendant there must be a Representative Plaintiff with a claim against that defendant and it submitted that since neither Plaintiffs alleges that he booked accommodation on referral from Trivago N.V., the representative plaintiff criterion is not satisfied as against Trivago N.V.

[290] On the assumption that the other certification criterion were satisfied, I would be satisfied that the Representative Plaintiff criterion as against Trivago was satisfied by Mr. Storey who deposed that he used Trivago over a decade.

M. Conclusion

[291] For the above reasons, the certification motion is dismissed. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Defendants’ submissions within twenty days of the release of these Reasons for Decision, followed by the Plaintiffs’ submissions within a further twenty days.

Perell, J.

Released: November 28 2022.

COURT FILE NO.: CV-20-00648592-00CP

DATE: 20221125

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MATTHEW HOY and JUSTIN STOREY

Plaintiffs

• and -

EXPEDIA GROUP INC., EXPEDIA CANADA CORPORATION, TRAVELSCAPE LLC, HOTELS.COM LP, HOTELS.COM GP, LLC, HRN 99 HOLDINGS LLP, TOUR EAST HOLIDAYS (CANADA) INC., TRIVAGO N.V., BOOKING HOLDINGS INC., BOOKING.COM B.V.

Defendants

REASONS FOR DECISION

PERELL J.

Released: November 28, 2022

[1] Lightfoot, Gordon. “Canadian Railroad Trilogy,” The Way I Feel. (1967)

[2] S.O. 1992, c. 6.

[3] R.S.C. 1985, c. C-34.

[4] S.O. 2002, c. 30, Schedule A.

[5] Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2, ss. 1, 2, 4, 5, 7, 8, 9, 10, 12, 14, 171, 172;Consumer Protection Act, R.S.A. 2000, c. C-26.3 (formerly the Fair Trading Act, R.S.A. 2000, c. F-2), ss. 1, 2, 5, 6, 7, 7.2, 13, 20, 21, 22, 23, 142.1;Consumer Protection and Business Practices Act, S.S. 2013, c. C-30.2, ss. 2, 4, 5, 6, 7, 8, 9, 15, 44, 45, 91, 93; The Business Practices Act, C.C.S.M c. B120, ss. 1, 2, 3.1, 4, 5, 6, 7, 8, 23; Consumer Protection Act, CQLR c. P-40.1, ss. 1, 2, 11.1, 37, 40, 41, 42, 53, 54, 215, 216, 217, 218, 219, 220, 221, 223.1, 228, 238, 239, 252, 253, 262, 263, 271, 272, 276; Consumer Protection Act, R.S.N.S. 1989, c. 92, ss. 26, 28; Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1, ss. 1, 2, 4, 10, 11, 15, 23; Business Practices Act, R.S.P.E.I. 1988, c.B-7, ss. 1, 2, 3, 4; Consumer Protection and Business Practices Act, S.N.L. 2009, c. C-31.1, ss. 2, 7, 8, 9, 10; Consumers Protection Act, R.S.Y. 2002, c.40, s. 58; Consumer Protection Act, R.S.N.W.T. 1988, c. C-17, s. 70; Consumer Protection Act, R.S.N.W.T. (Nu) 1988, c. C-17, s. 70.

[6] R.S.Q. c. A-10.

[7] S.O. 2002, c. 24, Sched. B.

[8] ACCC v. Trivago NV No. 2, 2022 FCA 417.

[9] Australian Competition and Consumer Commission v Trivago N.V. (No 2), [2022] FCA 417 (Aus. Fed. Ct.); People v. OverStock.Com, Inc., 12 Cal. App. 5th 1064 (Cal. Ct. App. 2017); Commissioner of Competition v. Sears Canada Inc., 2005 CACT 2.

[10] Richard v. Time Inc. 2012 SCC 8 at para 161.

[11] Pioneer Corp. v. Godfrey, 2019 SCC 42at paras56-78.

[12] 2013 SCC 57 at para. 115.

[13] Hollick v. Toronto (City), 2001 SCC 68 at para. 16.

[14] Hollick v. Toronto (City), 2001 SCC 68 at paras. 15 and 16; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at paras. 26 to 29.

[15] Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158 at para. 25; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at paras. 99-105; Taub v. Manufacturers Life Insurance Co., (1998) 1998 CanLII 14853 (ON SC), 40 O.R. (3d) 379 (Gen. Div.), aff’d (1999), 1999 CanLII 19922 (ON SC), 42 O.R. (3d) 576 (Div. Ct.).

[16] Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57; McCracken v. CNR Co., 2012 ONCA 445.

[17] Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at para. 140; Fresco v. Canadian Imperial Bank of Commerce, 2009 CanLII 31177 (ON SC), [2009] O.J. No. 2531 at para. 21 (S.C.J.); Dumoulin v. Ontario, [2005] O.J. No. 3961 at para. 25 (S.C.J.).

[18] Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 110.

[19] Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 102.

[20] Marcinkiewicz v. General Motors of Canada Co., 2022 ONSC 2180; MacKinnon v. Volkswagen, 2021 ONSC 5941; Maginnis v. FCA Canada Inc 2021 ONSC 3897 (Div. Ct.), aff’g 2021 ONSC 3897, leave to appeal dismissed April 8, 2022 (C.A.); Setoguchi v. Uber B.V., 2021 ABQB 18; Atlantic Lottery Corp Inc. v. Babstock, 2020 SCC 19; Richardson v. Samsung Electronics Canada Inc., 2018 ONSC 6130, aff’d 2019 ONSC 6845 (Div. Ct.); Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57; Singer v. Schering-Plough Canada Inc., 2010 ONSC 42.

[21] 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959.

[22] Wright v. Horizons ETFS Management (Canada) Inc., 2020 ONCA 337 at para. 57; Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572; Hollick v. Metropolitan Toronto (Municipality), 2001 SCC 68.

[23] 176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 2002 CanLII 6199 (ON SC), 62 O.R. (3d) 535 at para. 19 (S.C.J.), leave to appeal granted, 2003 CanLII 36393 (ON SCDC), 64 O.R. (3d) 42 (S.C.J.), aff'd (2004), 2004 CanLII 16620 (ON SCDC), 70 O.R. (3d) 182 (Div. Ct.); Anderson v. Wilson (1999), 1999 CanLII 3753 (ON CA), 44 O.R. (3d) 673 at p. 679 (C.A.), leave to appeal to S.C.C. ref'd, [1999] S.C.C.A. No. 476.

[24] 2011 SCC 42 at paras. 17-25.

[25] 2020 SCC 19 at para. 87–88.

[26] Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at para. 19.

[27] Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789 at para. 51.

[28] Cloud v. Canada (Attorney General) (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 at para. 41 (C.A.), leave to appeal to the S.C.C. refused, [2005] S.C.C.A. No. 50, rev'g, (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Hollick v. Toronto (City), 2001 SCC 68 at para. 25; Abdool v. Anaheim Management Ltd. (1995), 1995 CanLII 5597 (ON SCDC), 21 O.R. (3d) 453 at p. 469 (Div. Ct.).

[29] Deluca v. Canada (AG), 2016 ONSC 3865; Losier v. Mackay, Mackay & Peters Ltd., 2009 CanLII 43651 (ON SC), [2009] O.J. No. 3463 at paras. 39-40 (S.C.J.), aff’d 2010 ONCA 613, leave to appeal ref’d [2010] SCCA 438; Grenon v. Canada Revenue Agency, 2016 ABQB 260 at para. 32; Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184 at para. 34.

[30] Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.).

[31] Temelini v. Ontario Provincial Police (Commissioner) (1990), 1990 CanLII 7000 (ON CA), 73 O.R. (2d) 664 (C.A.).

[32] Johnson v. Adamson (1981), 1981 CanLII 1667 (ON CA), 34 O.R. (2d) 236 (C.A.), leave to appeal to the S.C.C. refused (1982), 35 O.R. (2d) 64n.

[33] Silver v. Imax Corp., 2009 CanLII 72334 (ON SC), [2009] O.J. No. 5585 (S.C.J.) at para. 20; Silver v. DDJ Canadian High Yield Fund, 2006 CanLII 21058 (ON SC), [2006] O.J. No. 2503 (S.C.J.).

[34] Sharp v. Royal Mutual Funds Inc., 2021 BCCA 307, aff’g 2020 BSCS 1781; Atlantic Lottery Corp Inc. v. Babstock, 2020 SCC 19 at para. 49.

[35] Maginnis v. FCA Canada Inc 2021 ONSC 3897 (Div. Ct.), aff’g 2021 ONSC 3897, leave to appeal dismissed April 8, 2022 (C.A.); Energizer Brands L.L.C. v. The Gillette Company, 2020 FCA 49 at paras. 57-60; Sandoff v. Loblaw Companies Limited, 2015 SKQB 345 at para. 49; Wakelam v. Johnson & Johnson, 2014 BCCA 36, leave to appeal to the S.C.C. ref’d [2014] S.C.C.A. No. 125; Koubi v. Mazda Canada Inc., 2012 BCCA 310, leave to appeal to the S.C.C. ref’d [2012] S.C.C.A. No. 398.

[36] 2014 BCCA 36, leave to appeal to the S.C.C. ref’d [2014] S.C.C.A. No. 125.

[37] Lin v. Airbnb, Inc., 2019 FC 1563at paras. 41-42, 69-71, settlement approved, 2021 FC 1260, and appeal abandoned, 2022 FCA 3; Wakelam v. Johnson & Johnson, 2014 BCCA 36at paras. 90-92; Magill v. Expedia Canada Corporation, 2010 ONSC 5247(motion to strike); Singer v. ScheringPlough Canada Inc., 2010 ONSC 42 at para. 107; Matoni v. C.B.S. Interactive Multimedia Inc. (Canadian Business College), 2008 CanLII 1539 (ON SC), [2008] O.J. No. 197 at para. 40 (S.C.J.); Hyprescon Inc. v. Ipex Inc., 2007 CanLII 11316 (ON SC), [2007] O.J. No. 1327 at paras. 65-71(S.C.J.); Lawrence v. Atlas Cold Storage Holdings Inc., [2006] O.J. No. 3748 (S.C.J.); Williams v. Mutual Life Assurance Co. of Canada (2000), 2000 CanLII 22704 (ON SC), 51 O.R. (3d) 54 at para. 34(S.C.J.), aff’d 2001 CanLII 62770 (ON SCDC), [2001] O.J. No. 4952 (Div. Ct.).

[38] Drynan v. Bausch Health Companies Inc., 2021 ONSC 7423, leave to appeal ref’d 2022 ONSC 1586 (Div. Ct.); Pioneer Corp v Godfrey, 2019 SCC 42; Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at paras. 107-108; Matoni v. C.B.S. Interactive Multimedia Inc. (Canadian Business College), 2008 CanLII 1539 (ON SC), [2008] O.J. No. 197 (S.C.J.).

[39] Ramdath v. George Brown College of Applied Arts and Technology, 2015 ONCA 921; Wakelam v. Johnson & Johnson, 2014 BCCA 36 at paras. 91-92, leave to appeal to the S.C.C. ref’d [2014] S.C.C.A. No. 125 Magill v. Expedia Canada Corp. 2010 ONSC 5247 at paras. 99-107; Singer v. Schering-Plough Canada Inc 2010 ONSC 42; Matoni v. CBS Interactive Multimedia, 2008 CanLII 1539 (ON SC), [2008] O.J. No. 197 at para. 40 (S.C.J.); Hyprescon Inc. v. Ipex Inc., 2007 CanLII 11316 (ON SC), [2007] O.J. No. 1327 at paras. 65-71 (S.C.J.); Lawrence v. Atlas Cold Storage Holdings Inc., [2006] O.J. No. 3748 (S.C.J.); Williams v. Mutual Life Assurance Co. of Canada (2000), 2000 CanLII 22704 (ON SC), 51 O.R. (3d) 54 para. 34 (S.C.J.), aff’d 2001 CanLII 62770 (ON SCDC), [2001] O.J. No. 4952 (Div. Ct.); Mouhteros v. DeVry Canada Inc. (1998), 1998 CanLII 14686 (ON SC), 41 O.R. (3d) 63 (Gen. Div.).

[40] Lin v. Airbnb, Inc., 2019 FC 1563 at para. 42, settlement approved, 2021 FC 1260, and appeal abandoned, 2022 FCA 3; Sandoff v. Loblaw Companies Limited, 2015 SKQB 345 at para. 49.

[41] Singer v. Schering-Plough Canada Inc2010 ONSC 42at para. 70; Williams v. Mutual Life Assurance Co. 2003 CanLII 48334 (ON CA), [2003] O.J. No. 1160 (C.A.).

[42] 2008 CanLII 1539 (ON SC), [2008] O.J. No. 197 at para. 40 (S.C.J.).

[43] 2010 ONSC 42, [2010] O.J. No. 113 at paras. 107-108 (S.C.J.).

[44] 2021 ONSC 7423.

[45] 2018 ONSC 7405.

[46] Palmer v. Teva Canada Ltd., 2022 ONSC 4690; Rebuck v. Ford Motor Company, 2022 ONSC 2396; Arora v. Whirlpool Canada LP, 2012 ONSC 4642, aff’d 2013 ONCA 657 at para. 50, leave to appeal ref’d [2013] S.C.C.A. No. 498; Williams v. Canon Canada Inc., 2011 ONSC 6571.

[47] Sandoff v. Loblaw Companies Limited, 2015 SKQB 345; R. v. Stucky, 2009 ONCA 151.

[48] Moore v. Sweet, 2018 SCC 52; Kerr v. Baranow, 2011 SCC 10; Garland v. Consumers' Gas Co., 2004 SCC 25; Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762; Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834.

[49] 2018 SCC 52 at para. 41.

[50] See also Apotex Inc. v. Eli Lilley and Company, 2015 ONCA 305 at paras 39-46.

[51] Sharp v. Royal Mutual Funds Inc., 2021 BCCA 307 at paras. 82-93, aff’g 2020 BSCS 1781; Moore v. Sweet, 2018 SCC 52 at para. 41 at para. 41; Apotex Inc. v. Eli Lilly and Company, 2015 ONCA 305 at para. 45.

[52] Mueller v. Nissan Canada Inc., 2022 BCCA 338; Williams v. Canon Canada Inc., 2011 ONSC 6571 at paras. 228-233, aff’d 2012 ONSC 3692 (Div. Ct.); Singer v. Schering-Plough Canada Inc., 2010 ONSC 42; Evanoff Enterprises Ltd. v. Pioneer Hi-Bred Ltd., 2009 ABQB 223; Boulanger v. Johnson & Johnson Corp. 2003 CanLII 52154 (ON CA), [2003] O.J. No. 2218 (C.A.).

[53] 2013 SCC 57.

[54] Williams v. Canon Canada Inc., 2011 ONSC 6571 at paras. 228-233, aff’d 2012 ONSC 3692 (Div. Ct.); Bank of Montreal v. ACS Precision Components Partnership, 2011 ONSC 700 at para. 43; Maynes v. Allen-Vanguard Technologies Inc., 2011 ONCA 125.

[55] Drynan v. Bausch Health Companies Inc., 2021 ONSC 7423 at para. 196, leave to appeal ref’d 2022 ONSC 1586 (Div. Ct.); Microcell Communications Inc. v. Frey, 2011 SKCA 136 at para. 27; Garland v. Consumers' Gas Co., 2004 SCC 25.

[56] Palmer v. Teva Canada Ltd., 2022 ONSC 4690; Bhangu v. Honda Canada Inc., 2021 BCSC 2381 and 2021 BCSC 794; Engen v. Hyundai Auto Canada Corp., 2021 ABQB 740; Krishnan v. Jamieson Laboratories Inc., 2021 BCSC 1396; Williams v. Canon Canada Inc., 2011 ONSC 6571; Richardson v. Samsung Electronics Canada Inc., 2019 ONSC 6845, aff’d 2019 ONSC 6845 (Div. Ct.); Singer v. Schering-Plough Canada Inc., 2010 ONSC 42; Sparkes v. Imperial Tobacco Ltd. 2008 NLTD 207, [2008] N.J. No. 379 (T.D.).

[57] 2018 ONSC 6130, aff’d 2019 ONSC 6845 (Div. Ct.).

[58] 2011 ONSC 6571, aff’d 2012 ONSC 3692 (Div. Ct.).

[59] 2010 ONSC 42.

[60] Drynan v. Bausch Health Companies Inc., 2021 ONSC 7423; Rebuck v. Ford Motor Company, 2018 ONSC 7405; Kalra v. Mercedes Benz, 2017 ONSC 3795.

[61] Sandoff v. Loblaw Companies Limited, 2015 SKQB 345 at para. 50; Wildeman v. Bell Mobility Inc., 2015 SKQB 125 at para. 66; Clark v Energy Brands Inc., 2014 BCSC 1891, at paras 41, 47 and 126.

[62] Engen v. Hyundai Auto Canada Corp¸ 2021 ABQB 740 at para. 27.

[63] Wright v. United Parcel Service Canada Ltd., 2011 ONSC 5044 at para. 101; Blackman v. Fedex Trade Networks Transport & Brokerage (Canada), Inc., 2009 BCSC 201.

[64] Consumer Protection Act, 2002, S.O. 2002, c. 30, Schedule A s. 18 (1)(2)(3).

[65] R. v. W. (D.L.), 2016 SCC 22 at para. 20.; R. v. Holmes, 1988 CanLII 84 (SCC), [1988] 1 S.C.R. 914; R. v. Jobidon (1988) 1988 CanLII 7140 (ON CA), 45 C.C.C. (3d) 176 (Ont. C.A.), aff’d 1991 CanLII 77 (SCC), [1991] 2S.C.R. 714; Woelk v. Halvorson, 1980 CanLII 17 (SCC), [1980] 2 S.C.R. 430.

[66] 2012 BCCA 310, leave to appeal to the S.C.C. ref’d [2012] S.C.C.A. No. 398.

[67] R.S.B.C. 1996, c. 410.

[68] S.B.C. 2004, c. 2.

[69] Carter v. Ford Motor Company of Canada, 2021 ONSC 4138; Maginnis v. FCA Canada Inc., 2021 ONSC 3897 (Div. Ct.); Spring v. Goodyear Canada Inc., 2021 ABCA 182; Wakelam v. Johnson & Johnson, 2014 BCCA 36, leave to appeal to the S.C.C. ref’d [2014] S.C.C.A. No. 125.

[70] 2015 ONCA 921at para. 90

[71] Ramdath v. George Brown College of Applied Arts and Technology, 2010 ONSC 2019.

[72] Ramdath v. George Brown College of Applied Arts and Technology, 2012 ONSC 6173.

[73] Ramdath v. George Brown College of Applied Arts and Technology, 2013 ONCA 468.

[74] Ramdath v. George Brown College of Applied Arts and Technology, 2014 ONSC 3066 and 2014 ONSC 4215.

[75] Ramdath v. George Brown College of Applied Arts and Technology, 2015 ONCA 921.

[76] Honda Canada Inc. v. Keays, 2008 SCC 39; Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30 at para. 62; Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 36; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at para. 196.

[77] 2011 SCC 8.

[78] Whiten v. Pilot Insurance Co., 2002 SCC 18; Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, Vorvis v. Insurance Corporation of British Columbia, 1989 CanLII 93 (SCC), [1989] 1 S.C.R. 1085. n

[79] Richard v. Time Inc., 20011 SCC 8 at paras. 154-178.

[80] Richard v. Time Inc., 20011 SCC 8 at paras. 175-180.

[81] Richard v. Time Inc., 20011 SCC 8 at paras. 178.

[82] Serhan v. Johnson & Johnson, (2004), 2004 CanLII 1533 (ON SC), 72 O.R. (3d) 296 (S.C.J).

[83] Serhan v. Johnson & Johnson, (2006), 2006 CanLII 20322 (ON SCDC), 85 O.R. (3d) 665 (Div. Ct.).

[84] 2020 SCC 19 at para. 34 citing E. J. Weinrib, “Restitutionary Damages as Corrective Justice” (2000), 1 Theor. Inq. L. 1 at p. 6.

[85] Soulos v. Korkontzilas, 1997 CanLII 346 (SCC), [1997] 2 S.C.R. 217.

[86] Moore v. Sweet, 2018 SCC 52; Kerr v. Baranow, 2011 SCC 10; Garland v. Consumers' Gas Co., 2004 SCC 25; Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762; Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834.

[87] Sharp v. Royal Mutual Funds Inc., 2021 BCCA 307; Atlantic Lottery Corp Inc. v. Babstock, 2020 SCC 19; Apotex Inc. v. Eli Lilly and Company, 2015 ONCA 305 at para. 47; Bank of America Canada v. Mutual Trust Co., 2002 SCC 43; Attorney General v. Blake, [2001] 1 A.C. 268 (H.L.).

[88] Serhan v. Johnson & Johnson, 2011 ONSC 128.

[89] 2020 SCC 19.

[90] Atlantic Lottery v. Babstock, 2020 SCC 19 at paras. 23-24.

[91] Atlantic Lottery v. Babstock, 2020 SCC 19 at paras. 23-24.

[92] Atlantic Lottery v. Babstock, 2020 SCC 19 at paras. 27 -29.

[93] Atlantic Lottery v. Babstock, 2020 SCC 19 at paras. 30-31.

[94] Atlantic Lottery v. Babstock, 2020 SCC 19 at para. 31.

[95] Atlantic Lottery Corp. v. Babstock, 2020 SCC 19 at paras. 23-38.

[96] Atlantic Lottery Corp. v. Babstock, 2020 SCC 19 at para. 49; Rogers & Rogers Inc. v. Pinehurst Woodworking Co. (2005), 2005 CanLII 45977 (ON SC), 14 B.L.R. (4th) 142 at para. 91 (Ont. S.C.J.).

[97] Atlantic Lottery Corp. v. Babstock, 2020 SCC 19 at para. 50; Asamera Oil Corp. Ltd. v. Sea Oil & General Corp., 1978 CanLII 16 (SCC), [1979] 1 S.C.R. 633, at p. 673).

[98] Atlantic Lottery Corp. v. Babstock, 2020 SCC 19 at paras. 51-58; Bank of America Canada v. Mutual Trust Co., 2002 SCC 43; Attorney General v. Blake, [2001] 1 A.C. 268 (H.L.);

[99] Sharp v. Royal Mutual Funds Inc., 2021 BCCA 307 at para. 100, aff’g 2020 BSCS 1781.

[100] Palmer v. Teva Canada Ltd., 2022 ONSC 4690; Bhangu v. Honda Canada Inc., 2021 BCSC 2381 and 2021 BCSC 794; Engen v. Hyundai Auto Canada Corp., 2021 ABQB 740; Krishnan v. Jamieson Laboratories Inc., 2021 BCSC 1396; Williams v. Canon Canada Inc., 2011 ONSC 6571; Richardson v. Samsung Electronics Canada Inc., 2019 ONSC 6845, aff’d 2019 ONSC 6845 (Div. Ct.); Singer v. Schering-Plough Canada Inc., 2010 ONSC 42; Sparkes v. Imperial Tobacco Ltd. 2008 NLTD 207, [2008] N.J. No. 379 (T.D.).

[101] 2010 ONSC 42.

[102] Engen v. Hyundai Auto Canada Corp¸ 2021 ABQB 740 at para. 27.

[103] Marcinkiewicz v. General Motors of Canada Co., 2022 ONSC 2180; MacKinnon v. Volkswagen, 2021 ONSC 5941; Maginnis v. FCA Canada Inc 2021 ONSC 3897 (Div. Ct.), aff’g 2021 ONSC 3897, leave to appeal dismissed April 8, 2022 (C.A.); Setoguchi v. Uber B.V., 2021 ABQB 18; Atlantic Lottery Corp Inc. v. Babstock, 2020 SCC 19; Richardson v. Samsung Electronics Canada Inc., 2018 ONSC 6130, aff’d 2019 ONSC 6845 (Div. Ct.); Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57; Singer v. Schering-Plough Canada Inc., 2010 ONSC 42.

[104] Pro-Sys Consultants Ltd. v. Microsoft Corporation 2013 SCC 57 at para. 115.

[105] 2008 SCC 27.

[106] 2017 SCC 28.

[107] 2018 ONSC 6130, aff’d 2019 ONSC 6845 (Div. Ct.).

[108] Peso Silver Mines Ltd. (N.P.L.) v. Cropper, 1966 CanLII 75 (SCC), [1966] S.C.R. 673; Addis v. Gramophone, [1909] A.C. 488 (H.L); Hamlin v. Great Northern Railway Co. (1856), 1 H & N 408 (Ex.).

[109] [1973] 1 All E.R. 71 (C.A.)

[110] Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.); Wharton v. Tom Harris Chevrolet Oldsmobile Cadillac Ltd. 2002 BCCA 78 (luxury chattels); Farley v. Skinner, 2001 UKHL 49; Wilson v. Sooter Studios Ltd. (1988), 1988 CanLII 3100 (BC CA), 33 B.C.L.R. (2d) 241 (C.A.) (wedding services); Warrington and Thompson v. Zurich Insurance Co. (1984), 1984 CanLII 1843 (ON SC), 7 D.L.R. (4th) 664 (Ont. H.C.J.) (disability insurance contract)

[111] 1989 CanLII 93 (SCC), [1989] 1 S.C.R. 1085.

[112] Vorvis v. Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC), [1989] 1 S.C.R. 1085 at 1102; Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30 at para. 42.

[113] 2006 SCC 30.

[114] Hadley v. Baxendale (1854), 9 Ex. 341, 156 E.R. 145,

[115] 2021 ONSC 5941.

[116] Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913 (Gen. Div.).

[117] Pearson v. Inco Ltd. (2006), 2006 CanLII 913 (ON CA), 78 O.R. (3d) 641 at para. 57 (CA), rev'g 2004 CanLII 34446 (ON SCDC), [2004] O.J. No. 317 (Div. Ct.), which had aff'd [2002] O.J. No. 2764 (SCJ).

[118] Robinson v. Medtronic Inc., 2009 CanLII 56746 (ON SC), [2009] O.J. No. 4366 at paras. 121-146 (SCJ).

[119] Frohlinger v. Nortel Networks Corporation, 2007 CanLII 696 (ON SC), [2007] O.J. No. 148 at para. 22 (SCJ).

[120] Silver v. Imax Corp., 2009 CanLII 72334 (ON SC), [2009] O.J. No. 5585 at para. 103-107 (SCJ) at para. 103-107, leave to appeal to Div. Ct. refused 2011 ONSC 1035 (Div. Ct.); Boulanger v. Johnson & Johnson Corp., 2007 CanLII 735 (ON SC), [2007] O.J. No. 179 at para. 22 (SCJ), leave to appeal ref’d [2007] O.J. No. 1991 (Div. Ct.); Ragoonanan v. Imperial Tobacco Inc. (2005), 2005 CanLII 40373 (ON SC), 78 O.R. (3d) 98 (S.C.J.), leave to appeal ref’d 2008 CanLII 19242 (ON SCDC), [2008] O.J. No. 1644 (Div. Ct.); Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913 at para. 10 (Gen. Div.).

[121] Fehringer v. Sun Media Corp., [2002] O.J. No. 4110 at paras. 12-13 (SCJ), aff’d [2003] O.J. No. 3918 (Div. Ct.); Hollick v. Toronto (City), 2001 SCC 68 at para. 21.

[122] 2010 ONSC 5247.

[123] Bernstein v. Peoples Trust Company, 2017 ONSC 752; Sankar v. Bell Mobility Inc., 2013 ONSC 5916 (certification), leave to appeal refused, 2013 ONSC 7529 (Div. Ct.); Graham v. Imperial Parking Canada Corp. (c.o.b. Impark), 2010 ONSC 4982.

[124] Kamloops v. Nielson (1984), 1984 CanLII 21 (SCC), 10 D.L.R. (4th) 641 (S.C.C.); Central Trust Co. v. Rafuse (1986), 1986 CanLII 29 (SCC), 31 D.L.R. (4th) 481 (S.C.C.); Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549.

[125] Lawless v. Anderson, 2011 ONCA 102 at para. 22; Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 CanLII 954 (ON CA), 38 O.R. (3d) 161 at p. 170 (C.A.).

[126] Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at paras. 33 and 70.

[127] Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147 at p. 224.

[128] Murphy v. S.P. Hart Home Inspections, 2018 ONSC 1648; Wong v. Salivan Landscape Ltd., 2016 ONSC 4183 (Master); Galota v. Festival Hall Developments Ltd., 2016 ONCA 585, aff’g 2015 ONSC 6177; Fennell v. Deol, 2016 ONCA 249; Longo v. MacLaren Art Centre Inc., 2014 ONCA 526.

[129] Canning Construction Limited v. Dhillon, 2021 ONSC 665 at para. 37.

[130] Madden v. Holy Cross Catholic Secondary School, 2015 ONSC 1773 at para. 17; Lipson v. Cassels Brock & Blackwell LLP, 2013 ONCA 165; Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 at para. 71; Lawless v. Anderson, 2011 ONCA 102 at para. 22; Zapfe v. Barnes (2003), 2003 CanLII 52159 (ON CA), 66 O.R. (3d) 397 (C.A.); Kenderry-Esprit (Receiver of) v. Burgess, MacDonald, Martin and Younger (2001), 2001 CanLII 28042 (ON SC), 53 O.R. (3d) 208, at para. 19 (S.C.J.); Smyth v. Waterfall (2000), 2000 CanLII 16880 (ON CA), 50 O.R. (3d) 481 at para. 8 (C.A.).

[131] Arcari v. Dawson, 2016 ONCA 715; Lima v. Moya, 2015 ONSC 324 at para. 76, aff’d 2015 ONSC 3605 (Div. Ct.).

[132] Fontanilla Estate v. Thermo Cool Mechanical, 2016 ONSC 7023; Unegbu v. WFG Securities of Canada Inc., 2015 ONSC 6408, aff’d 2016 ONCA 501 (C.A.); Durham (Regional Municipality) v. Oshawa (City), 2012 ONSC 5803 at paras. 35–41; Bolton Oak Inc. v. McColl-Frontenac Inc., 2011 ONSC 6567 at paras. 12–14; Pepper v. Zellers Inc. (c.o.b. Zellers Pharmacy) (2006), 2006 CanLII 42355 (ON CA), 83 O.R. (3d) 648 at paras. 20–22 (C.A.); Bhaduria v. Persaud (1998), 1998 CanLII 14846 (ON SC), 40 O.R. (3d) 140 (Gen. Div.).

[133] Vu v. Canada (Attorney General); 2021 ONCA 574 at para. 47; Grant Thornton LLP v. New Brunswick 2021 SCC 31; Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47 at para. 41, leave to appeal refused, [2019] S.C.C.A. No. 91.

[134] Vu v. Canada (Attorney General); 2021 ONCA 574 at para. 49; Lawless v. Anderson, 2011 ONCA 102 at para. 23.

[135] Pickering Square Inc. v. Trillium College Inc., 2014 ONSC 2629 at para. 52, aff’d 2016 ONCA 179; Holley v. Northern Trust Co., Canada, 2014 ONSC 889 at para. 156, aff’d 2014 ONCA 719; Liu v. Silver, 2010 ONSC 2218, aff’d 2010 ONCA 731; Nicholas v. McCarthy Tétrault LLP, 2008 CanLII 54974 (ON SC), [2008] O.J. No. 4258 at para. 27 (S.C.J.), aff’d 2009 ONCA 692, [2009] O.J. No. 4061 (C.A.); Milbury v. Nova Scotia (Attorney General) (2007), 2007 NSCA 52, 283 D.L.R. (4th) 449 (N.S.C.A.); Calgar v. Moore, [2005] O.J. No. 4606 (S.C.J.); Coutanche v. Napoleon Delicatessen (2004), 2004 CanLII 10091 (ON CA), 72 O.R. (3d) 122 (C.A.); Hill v. South Alberta Land Registration District (1993), 1993 ABCA 75, 100 D.L.R. (4th) 331 (Alta. C.A.).

[136] Tender Choice Foods Inc. v. Versacold Logistics Canada Inc, 2013 ONCA 474at para. 1.

[137] Dass v. Kay, 2021 ONCA 565; Sosnowski v. MacEwan Petroleum Inc., 2019 ONCA 1005

[138] Salman v. Patey, 2016 ONSC 7999; Szanati v. Melnychuk, 2016 ONSC 1293; Hughes v. Dyck, 2016 ONSC 901; Brown v. Wahl, 2015 ONCA 778; Cassidy v. Belleville (City) Police Service, 2015 ONCA 794; Lochner v. Toronto (City) Police Services Board, 2015 ONCA 626 at para. 7; Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80 at paras. 58–61, aff’d 2013 ONCA 474.

[139] Giakoumakis v. Toronto (City), [2009] O.J. No. 55 at para. 20 (S.C.J.); Oakville Hydro Electricity Distribution Inc. v. Tyco Electronics Canada Ltd. (2004) 2004 CanLII 13633 (ON SC), 71 O.R. (3d) 330 at paras. 10–13.

[140] Gordon Dunk Farms Limited v. HFH Inc., 2021 ONCA 681 at paras. 32-36.

[141] Pickering Square Inc. v. Trillium College Inc., 2014 ONSC 2629 at paras. 64–66, aff’d 2016 ONCA 179; Hamilton (City) v. Metcalfe & Mansfield Capital Corp., 2012 ONCA 156.

[142] Kowal v. Shyiak, 2012 ONCA 512 at para. 18; Duchesne v. St-Denis, 2012 ONCA 699 at paras. 24–27; Gaudet v. Levy (1984), 1984 CanLII 2047 (ON SC), 47 O.R. (2d) 577 (H.C.J.).

[143] 2021 SCC 31

[144] S.N.B. 2009, c. L-8.5, s. 1.

[145] McFlow Capital Corp. v. James, 2021 ONCA 753; Gordon Dunk Farms Limited v. HFH Inc., 2021 ONCA 681; Vu v. Canada (Attorney General); 2021 ONCA 574; Sunnybrook Health Sciences Centre v. Buttcon Ltd. 2021 ONSC 6061.

[146] 2013 ONSC 683 at para. 102.

[147] Hollick v. Toronto (City), 2001 SCC 68 at para. 18.

[148] Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at paras. 39 and 40.

[149] Fehringer v. Sun Media Corp., [2003] O.J. No. 3918 at paras. 3, 6 (Div. Ct.).

[150] McKenna v. Gammon Gold Inc., 2010 ONSC 1591, [2010] O.J. No. 1057 at para. 126 (S.C.J.), leave to appeal granted 2010 ONSC 4068, [2010] O.J. No. 3183 (Div. Ct.), var’d 2011 ONSC 3882 (Div. Ct.); Nadolny v. Peel (Region), [2009] O.J. No. 4006 at paras. 50-52 (S.C.J.); Collette v. Great Pacific Management Co., 2003 BCSC 332, [2003] B.C.J. No. 529 at para. 51 (B.C.S.C.), var’d on other grounds (2004) 2004 BCCA 110, 42 B.L.R. (3d) 161 (B.C.C.A.).

[151] Batten v. Boehringer Ingelheim (Canada) Ltd., 2017 ONSC 53, aff’d, 2017 ONSC 6098 (Div. Ct.), leave to appeal refused (28 February 2018) (C.A.); Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2015 ONCA 572 at para. 48; McCracken v. CNR, 2012 ONCA 445 at para. 183; Merck Frosst Canada Ltd. v. Wuttunee, 2009 SKCA 43 at paras. 145-46 and 160, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 512; Ernewein v. General Motors of Canada Ltd., 2005 BCCA 540 (C.A.), leave to appeal to S.C.C. ref’d, [2005] S.C.C.A. No. 545; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para. 40.

[152] 203874 Ontario Ltd. v. Quiznos Canada Restaurant Corp., 2009 CanLII 23374 (ON SCDC), [2009] O.J. No. 1874 (Div. Ct.), aff’d 2010 ONCA 466, [2010] O.J. No. 2683 (C.A.), leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 348; Cloud v. Canada (Attorney General) (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 at para. 52 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.); Carom v. Bre-X Minerals Ltd. (2000), 2000 CanLII 16886 (ON CA), 51 O.R. (3d) 236 at para. 42 (C.A.).

[153] Cloud v. Canada (Attorney General), (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.).

[154] Hodge v. Neinstein, 2017 ONCA 494 at para. 114; Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 at para. 112; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para. 54.

[155] Harrington v. Dow Corning Corp., 2000 BCCA 605, [2000] B.C.J. No. 2237 (C.A.), leave to appeal to S.C.C. ref’d [2001] S.C.C.A. No. 21.

[156] Jensen v. Samsung Electronics Co. Ltd., 2021 FC 1185; Kuiper v. Cook (Canada) Inc., 2020 ONSC 128 (Div. Ct.).

[157] Simpson v. Facebook, Inc. 2022 ONSC 1284 at para. 25 (Div. Ct.); Jensen v. Samsung Electronics Co. Ltd., 2021 FC 1185; Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at para. 140.

[158] Kuiper v. Cook (Canada) Inc., 2018 ONSC 6847 at para. 157, var’d, but not on this point, 2020 ONSC 128 (Div. Ct.); Batten v. Boehringer Ingelheim (Canada) Ltd., 2017 ONSC 53, aff'd 2017 ONSC 6098 (Div. Ct.).

[159] Singer v. Schering-Plough Canada Inc., 2010 ONSC 42 at para. 194; Pearson v. Inco, [2002] O.J. No. 2764 at para. 107 (S.C.J.), var’d (2005), 2006 CanLII 913 (ON CA), 78 O.R. (3d) 641 (C.A.), leave to appeal dismissed [2006] S.C.C.A. No. 1.

[160] Palmer v. Teva Canada Ltd., 2022 ONSC 4690: MacKinnon v. Pfizer Canada Inc.2022 BCCA 151, var’g 2021 BCSC 1093; Sharp v. Royal Mutual Funds Inc., 2021 BCCA 307.

[161] Palmer v. Teva Canada, 2022 ONSC 4690 at para. 291; Fulawka v Bank of Nova Scotia, 2012 ONCA 443 at paras. 111-114, 139, leave to appeal ref’d, [2012] SCCA No 326.

[162] Markson v. MBNA Canada Bank, 2007 ONCA 334 at para. 69, leave to appeal to SCC ref’d [2007] S.C.C.A. No. 346; Hollick v. Toronto (City), 2001 SCC 68.

[163] 2013 SCC 69 at paras. 24-38.

[164] Cloud v. Canada (Attorney General) (2004), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401 at para. 52 (C.A.), leave to appeal to the S.C.C. ref'd, [2005] S.C.C.A. No. 50, rev'g (2003), 2003 CanLII 72353 (ON SCDC), 65 O.R. (3d) 492 (Div. Ct.).

[165] Markson v. MBNA Canada Bank, 2007 ONCA 334; Hollick v. Toronto (City), 2001 SCC 68.

[166] Musicians’ Pension Fund of Canada (Trustee of) v. Kinross Gold Corp., 2014 ONCA 901; AIC Limited v. Fischer, 2013 SCC 69; Hollick v. Toronto (City), 2001 SCC 68.

[167] Batten v. Boehringer Ingelheim (Canada) Ltd, 2017 ONSC 53, aff’d 2017 ONSC 6098 (Div. Ct.), leave to appeal to C.A. ref’d (2018), 292 ACWS (3d) 490; O’Brien v. Bard Canada, 2015 ONSC 2470.

[168] AIC Limited v. Fischer, 2013 SCC 69at para. 16.

[169] Maginnis v. FCA Canada Inc., 2021 ONSC 3897 (Div. Ct.), aff’g 2020 ONSC 5462, leave to appeal dismissed April 8, 2022 (C.A.); Atlantic Lottery Corp Inc. v. Babstock, 2020 SCC 19 at para. 68.

[170] 2020 ONSC 5462, aff’d 2021 ONSC 3897 (Div. Ct.), leave to appeal dismissed April 8, 2022 (C.A.).

[171] 2010 ONSC 42.

[172] Drady v. Canada (Minister of Health), 2007 CanLII 27970 (ON SC), [2007] O.J. No. 2812 at paras. 36-45 (S.C.J.); Attis v. Canada (Minister of Health), [2003] O.J. No. 344 at para. 40 (S.C.J.), aff'd [2003] O.J. No. 4708 (C.A.).