CITATION: Rodd v. Intuit Canada ULC, 2026 ONSC 3602

COURT FILE NO.: CV-22-00686049-00CP

DATE: 20260724

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MEGAN JESSICA ZITANI RODD

Plaintiff

– and –

INTUIT CANADA ULC and INTUIT INC.

Defendants

Joel P. Rochon and Pritpal Mann, for the Plaintiff

Dana M Peebles, Gillian P. Kerr, Adam H. Kanji, and Sabih Ottawa, for the Defendants

HEARD: May 29, 2026

Leiper J.

REASONS FOR DECISION

(Proceeding Under the Class Proceedings Act, 1992)

I. Introduction. 2

II. The Issue on the Motion. 3

III. Summary of Findings. 3

IV. Background. 4

Jordan Barker’s Experience with the Tax Software. 10

Intuit Inc. and Intuit Canada LLC.. 11

The Expert Report of Professor Matthew Osborne: Evidence of a Methodology on Liability. 12

Evidence of Gregg Edwards: Methodology for Determining Damages. 12

V. Analysis of the Issues on Certification. 13

Section 5(1)(a): The pleadings disclose a cause of action. 14

Has the plaintiff pleaded a credible claim against Intuit Inc.?. 15

The Consumer Protection claims. 16

The Competition Act claims. 17

Unjust enrichment 19

Punitive damages. 20

Section 5(1)(b): There is an identifiable class of two or more persons that would be represented by the representative plaintiff. 21

The Limitation Period and the Class Period. 22

Findings on the Class Definition and Class Period. 23

Section 5(1)(c): Do the plaintiff’s claims raise common issues?. 23

Are there common issues on liability?. 23

Are there common issues in damages?. 25

Aggregate Damages. 25

Disgorgement 26

Section 5(1)(d): Preferable Procedure. 27

Section 5(1)(e): The Proposed Representative Plaintiff. 28

VI. Conclusion. 29

I. Introduction

1The plaintiff, Megan Jessica Zitani Rodd (“Ms. Rodd”), seeks an order certifying this action pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6, (the “CPA”).

2Ms. Rodd’s claim originates in her purchase of tax filing software developed and marketed in Canada by Intuit Canada ULC. Intuit Inc. is the U.S. parent company of the wholly-owned Canadian subsidiary. In these reasons, I refer to them jointly as “Intuit”.

3Ms. Rodd alleges that because of Intuit’s misleading representations, she and other class members paid for what they believed would be a free service. While the alleged harms are modest amounts individually, Ms. Rodd submits that considering thousands of people purchased the product promoted misleadingly, Intuit received a significant unjust enrichment.

4Ms. Rodd asserts claims for breaches of consumer protection legislation, and the Competition Act, R.S.C., 1985, c. C-34, or alternatively, in unjust enrichment. She seeks to certify questions of liability and remedies which Ms. Rodd submits can be answered in common for the benefit of the class.

5The defendants submit that there is no basis in fact to certify the action as a class proceeding. They submit that for taxation years 2015 through 2020, they made the Canadian tax software available free of charge to users. Intuit submits that it did not make any misrepresentation because it was true that consumers could use the software to file for free or they could purchase upgrades. Intuit agrees that some, but not all, of its Canadian advertising, in both print and video format, used the phrase “free, free, free.”

6After tax year 2020, Intuit’s pricing and advertising changed: the defendants adopted what Intuit refers to as the “Complexity Model.” Intuit ceased advertising in Canada that its tax software was “free, free, free” for any tax filer. Instead, they advertised that their software would be free for “simple returns.” Intuit submits that this was also true and thus, there is no cause of action capable of being certified.

7Intuit submits there are barriers to the certification order sought by the plaintiffs which include:

a There is no basis in fact to find that Intuit’s advertising supports any common issues for an identifiable class of Canadian consumers.

b Intuit Inc., the parent of the wholly-owned Canadian subsidiary, Intuit Canada LLC, submits that there is no separate credible claim against it or any pleaded actionable conduct on its part.

c Intuit submits that the proposed class definition is too broad, because it includes all purchasers of the tax software, including those who may have chosen to purchase a paid version.

d Intuit submits there is no rational connection between the proposed class definition and the common issues asserted by the plaintiff.

e Intuit submits that the consumer protection claims fail to plead material facts that support the different statutory regimes across Canada. This includes jurisdictions which require reliance for a successful claim, and others where there is no free-standing statutory cause of action.

f The plaintiff has inadequately pleaded her claims under the Competition Act.

g There is no basis for several of the common issues proposed for damages.

h There are a plethora of individual issues which predominate over the common issues, including why a class member signed up for the product, whether they were induced to by the advertising, what they read on the web site, their understanding of what amounts to a “simple return” and their reasons for purchasing any upgrades.

i Ms. Rodd is an unsuitable representative plaintiff because she continued using the software that she complains was marketed to her in a misleading fashion for her tax filings in tax years 2021-2024.

II. The Issue on the Motion

8There is one issue on the certification motion, which is whether the plaintiff established that this action should be certified as a class proceeding under the CPA.

III. Summary of Findings

9I conclude that the plaintiff has met the test for certification within s. 5 of the CPA. Several of Intuit’s objections to certification are trial issues, notably whether its advertising was misleading to consumers or breached the Competition Act. I conclude that the class size is defined objectively, the proposed representative plaintiff has brought her claim in time, and that Ms. Rodd is an appropriate representative of the class as defined.

10The action is eminently suitable for class proceedings. The amounts at stake are small on an individual basis, but class-wide they potentially affect thousands of Canadian users of the software. The common liability issues focus on the defendants’ conduct and whether that conduct breached Canadian competition legislation and provincial consumer protection legislation. A class proceeding is preferable to thousands of individual proceedings, and the common issues in this case predominate over individual ones.

11Certification is a procedural step. It does not require a plaintiff to establish that it can succeed at trial. The plaintiff has met the threshold in law for certification.

IV. Background

12The proposed representative plaintiff, Ms. Rodd, is a single parent, nurse practitioner who receives employment income and support payments from her former spouse. She alleges that she, and thousands of Canadians who file tax returns in Canada, were harmed by Intuit’s deceptive marketing practices for their tax filing software. She alleges that Intuit intentionally used “bait and switch” tactics and “drip” pricing¹, contrary to provincial consumer protection legislation, and to the federal Competition Act, R.S.C. 1985 c. C-34.

13Ms. Rodd alleges that Intuit made two types of misrepresentation. Prior to 2021, Intuit advertised that its online software was available “free” when this was not the case. After 2021, Ms. Rodd alleges that Intuit misrepresented that the software would be “free for simple tax returns.”

14Ms. Rodd tendered examples of advertising during the pre-2021 period where phrases appear such as:

“$0 Guaranteed.”

“100% free. CRA certified.”

“File for 0%.”

“TurboTax Free is…you guessed it: 100% free.”

“Always Free.”

15Ms. Rodd filed several video ads in support of her submission that Intuit misleadingly represented that its tax filing software was “free,” without qualifications or restrictions.

16Intuit’s witness, Gah-Yee Won (“Ms. Won”), a senior executive with Intuit Canada, provided affidavit evidence on information and belief for the period between 2014 and 2020. Ms. Won testified that she had been informed that before 2021, the tax software was free to all Canadian consumers. Intuit relies on this evidence in support of its submission that there is no common issue for liability because the tag line, “free, free, free” was true because anyone “could file any tax return, for free.”

17Two examples of the “free” advertising follow:

18Ms. Rodd alleges that she was “caught” by the design of the software and the promise that it would be free. She described herself as a budget conscious single parent, who was looking for free tax software. She completed an on-line search which took her directly to the first page of the Intuit software to begin the filing process.

19During the process, she received various pop ups and lock screens as she entered her information into the software. She described the pop-ups as “confusing, misleading and unclear.”

20Ms. Rodd eventually landed on a screen which appeared to provide her with no option but to pay to continue. Given the time and effort she had already spent in completing the necessary steps to file using the Intuit software, Ms. Rodd believed that she could not file her taxes for free as promised. She believed that she was required to purchase the paid upgrades to successfully complete her tax filing. The material filed on the motion revealed that under Intuit’s Terms of Service, customers were not told the price of the upgrades until the end of the tax filing process. Ms. Rodd paid for the upgrades and filed her taxes. Her first experience with the tax software was for filing in taxation year 2019.

21Ms. Rodd explained that she also purchased the Intuit software for tax years 2020-2024. In total she paid $129.91 to file her taxes. She explained that she did so because the software had already saved all of her personal and tax information, and she was by then familiar with the interface. In 2025, Ms. Rodd found an alternative software provider.

22In relation to the second type of representations for tax years after 2021, Ms. Rodd described receiving an email advertisement from Intuit with an offer which appeared to provide her with a free option on the basis of having a “simple return.” The button provided a list of what the simple return involved: “RRSP contributions, childcare expenses, tuition, and more”. That ad looked like this:

23However, she discovered that the ‘free for simple returns” did not apply to her, because she received child support payments. Ms. Rodd did not understand this limitation when she started preparing her 2022 tax year return. As she worked with this version of the Intuit software, Ms. Rodd said she was confronted with a “lockscreen” which appeared to require her to upgrade to a paid product before she could declare her received child support payments on her income tax return.

24Ms. Rodd felt tricked by the discrepancy between Intuit’s representations and her experience using the tax software. Nevertheless, she continued to purchase and use the software until 2025, when she discovered a provider who she said provided tax filing software that was “actually free.”

25In Ms. Won’s affidavit, she explained that on the Intuit website, an options page provided information about the “free for simple tax returns” offer, with a hyperlink embedded in it that took customers to a page showing items included in Intuit’s definition of “simple tax returns.” That page appears as follows:

Simple tax returns include:

a. Employment income

b. Pension income

c. Other employment income such as tips

d. RRSP contributions

e. Childcare expenses

f. COVID-19 benefits and re-payments

g. Unemployment (El) and social assistance

h. Worker's compensation

i. Disability amount

j. Worker's benefit

k. Amount for eligible/infirm dependants

l. Tuition, scholarships, bursaries, grants, student loan interest

m. Caregiver tax credit

n. Disability transfer

o. Home accessibility tax credit

p. Tax on RESPs and RDSPs

q. Tax installment payments

r. Age amount

Income, credits, and deductions not on this list were not covered by Intuit’s software, including:

a. Employment expenses (meals, lodging, etc.)

b. Donations

c. Medical expenses

d. Investment income and expenses

e. Rental property income and expenses

f. Self-employed income and expenses

26I highlight two points on this webpage. First, the list is not exhaustive. Had Ms. Rodd clicked on the hyperlink, she would not have been able to confirm that a “simple tax return” as defined by Intuit, did not include child support payments. Second, the evidence establishes that the CRA also uses the term “simple tax returns,” however the criteria for a CRA “simple” return was different the Intuit criteria.

27Ms. Won provided affidavit evidence that included Intuit’s data about software purchasers during tax years 2021 and 2022 which reveal, on a macro level, where users who selected the free version (for simple returns) landed after they navigated the software. Intuit did not provide data for the pre-2021 purchasers.

28The volume of purchases, free or otherwise, can be seen in the following statistics and were current as of May 26, 2024, given that taxpayers may file the previous year’s tax returns:

For 2021:

-1,730,703 total users selected the free version of the software (the “original group”);

-702,703 of the original group were shown a “complexity upgrade screen” (the “complexity screen group”)

*of the complexity screen group, 407,465 selected the upgrade and 295,239 did not take it;

*of the 407,465 who selected the upgrade, 366,454 paid for the product, the remainder did not file with Intuit.

*of the complexity screen group, 154,261 “simplified” their return and filed for free using the software, 17,889 took a service upgrade and filed and 123,089 did not file with Intuit.

-of the 1,028,000 from the original group who did not see a complexity upgrade screen, 810,187 of those completed and filed using the free software, and the rest, numbering 217,813, did not file with Intuit.

29Therefore, for tax year 2021, of the original 1,730,703 users who selected the free software, the net number who filed for free in 2021 was 154,261 + 810,187= 964,448, or approximately 55% of the original group who selected the free software.

30A similar pattern of purchases emerges from the 2022 data as follows:

For 2022:

-1,527,333 total users began by selecting the free version of the software (the “original group”);

-562,022 of the original group were shown a “complexity upgrade screen” (the “complexity screen group”)

*of the complexity screen group, 319,118 selected the upgrade and 242,905 did not take it;

*of the 319,118 who selected the upgrade, 288, 253 paid for the product, the remainder did not file with Intuit.

*of the complexity screen group, 152,699 “simplified” their return and filed for free using the software, 12,864 took a service upgrade and filed using Intuit software and 77,342 did not file with Intuit.

-of the 965,311 from the original group who did not see a complexity upgrade screen, 829,002 of those completed and filed using the free software, and the remainder, 136,309 did not file with the software.

31For 2022, of the original 1,527,333 users who selected the free software, the net number of users who filed for free in 2021 was 152,699 + 829,002= 980,711, or approximately 64% of the original group who selected the free software.

Jordan Barker’s Experience with the Tax Software

32The plaintiff’s affiant, Jordan Barker (“Mr. Barker”), had a similar experience. In 2023, he received an email from Intuit Canada that advertised the software as a way for him to file his 2022 tax returns for “free.” He said that he saw ads for the tax software on social media, online advertising, and on television. He described them as “pretty basic ads, just saying, ‘File with us for free,’ essentially.” Mr. Barker stated that Intuit’s email included a diagram of the various Intuit offerings:

33Mr. Barker logged in and began preparing his return. After spending over an hour entering his information, he discovered that to complete his return, he was required to purchase the “Deluxe Online 2022” software at a cost of $20.99. Having invested the time preparing his information, Mr. Barker paid to use the Intuit software to file his tax returns.

34Mr. Barker is an employed carpenter, with no dependents. He received a T4 annually setting out his income, and he had no additional sources of income. Unlike Ms. Rodd, Mr. Barker had been able to file in previous tax years using the Intuit tax software without paying. However, for tax year 2022, the offering had changed to “Free for simple tax returns” and as he subsequently learned, his tax return was not “simple”.

35Ms. Won for Intuit Canada gave evidence that Mr. Barker could not use the free option for simple returns because he had reported union dues that were not on his T4. Mr. Barker’s evidence was that his union dues were deducted at source and were reported as part of his T4. Nevertheless, he was not able to file for free.

36The information from the Intuit Canada website shown above, describing what is a simple tax return, does not mention deducted union dues.

Intuit Inc. and Intuit Canada LLC

37Intuit Inc. is an American public company, incorporated in 1984. It is listed on the NASDAQ. Its wholly-owned subsidiary, Intuit Canada ULC (“Intuit Canada”) is based in Toronto. A general manager within Intuit Canada reports directly to Intuit Inc.’s Senior Vice President.

38Intuit Inc. owns the tax software at issue in this action, including the trademarks and patents for the Canadian version. Intuit Inc. reports on its global income, including from the sale of the Canadian software on an aggregated basis in its financial reporting. Intuit responded to undertakings for this motion that it earned $18 million in 2015 and $19 million in 2016 for tax software sales in Canada. In filings from 2014-2023, Intuit Inc. discussed its “Canada offerings” of its tax software, serving the “needs of our customers.”

39Intuit Canada has its own marketing employees. Ms. Won stated that the Canadian version of the tax software was “owned, advertised and operated independently” by Intuit Canada. Under cross-examination she confirmed that Intuit Inc. includes revenues from sales of Canadian software. She also confirmed that Intuit Inc. and Intuit Canada are related entities, and Intuit Inc. includes Intuit Canada’s revenues in its annual report.

40Ms. Won acknowledged that Intuit Inc. and Intuit Canada share creative content for marketing their products, with necessary differences in place to reflect differences in tax requirements and language, such as French language advertising in Québec.

41The plaintiff filed Intuit Canada’s terms of service for 2017, 2018, and 2019, and cited various provisions within the terms of service for 2017 which require notice to Intuit Inc. relative to Apple software purchases (p. 32, Terms of Service). The terms of service advise the reader that “Intuit, the Intuit logo, TurboTax, TurboImpot and the TurboTax logo, among others, are registered trademarks and/or service marks of Intuit Inc. in the United States and/or Canada and other countries” (p. 16, Terms of Service). The terms of service stipulate that the “use of the software is governed by copyright, trade secret and other intellectual property laws” (p. 3, Terms of Service). The terms of service also refer to Intuit Canada and/or its “subsidiaries and affiliates”. Affiliates are not defined. The plaintiff submits that these provisions are some evidence that Intuit Inc. is a party to the agreement between Intuit Canada and the putative class members.

The Expert Report of Professor Matthew Osborne: Evidence of a Methodology on Liability

42Dr. Osborne is an Associate Professor of Marketing at the University of Toronto. He provided an expert report on the subject of marketing and behavioural science, including on an available methodology to establish whether Intuit’s tax software was designed to prevent users from assessing the likelihood that they would have to pay to complete their tax filings until after they had invested time using the software.

43Dr. Osborne described behavioural science research showing that consumers will take steps to avoid fees if they know about the fees in advance. For tax software, where a consumer is surprised with a fee, they may pay the fee anyway after spending time entering information, because the past “sunk costs” will compel them to give in and pay the fee. Dr. Osborne described the outcome of this type of software design:

The design of TurboTax’s site, may also increase sunk costs as it makes it difficult to find the free option and thus, may increase the time commitment required to find the free option. The practice of introducing such a friction into a market that makes a process difficult to navigate is called ‘sludge’ by behavioural scientists and is also [a] well-documented (and unfortunate) occurrence in marketplace settings.

44Dr. Osborne gave evidence about methodologies to establish the “general perception or impression conveyed by Intuit’s advertising to Canadian consumers” and whether Intuit’s advertising represented to Canadian consumers that they could file their returns for “free” using the tax software. Counsel to Intuit did not cross-examine Dr. Osborne on this evidence.

Evidence of Gregg Edwards: Methodology for Determining Damages

45Mr. Gregg Edwards is the managing director of CE Financial Economics Ltd. He gave evidence as to four proposed methodologies for determining damages for consumers who used the free version of the tax software and upgraded to a paid service to complete their tax filings. His methodologies would use information expected to be retained by Intuit to calculate:

a The revenues received by Intuit from the “at-issue” sales;

b The profits earned by Intuit from the “at-issue” sales;

c The amounts paid by customers for the “at-issue” sales; and

d The difference between the amounts paid by class members and amounts that class members would have paid for a comparable (free) product.

46Intuit did not challenge Mr. Edwards on his credentials, nor on the substance of his opinion. Intuit challenges whether Mr. Edwards’ opinion is based on correct assumptions. I discuss that issue below.

V. Analysis of the Issues on Certification

47Pursuant to s. 5(1) of the CPA the court shall certify a class proceeding if:

a. the pleadings or the notice of application disclose a cause of action;

b. there is an identifiable class of two or more persons that would be represented by the representative plaintiff;

c. the claims or defences of the class members raise common issues;

d. a class proceeding would be the preferable procedure for the resolution of the common issues; and

e. there is a representative plaintiff who would fairly and adequately represent the interests of the class, has produced a workable plan for the proceeding, and does not have an interest in conflict with the interests of other class members.

48The question of preferability is subject to s. 5(1.1) of the CPA which provides:

5 (1.1) In the case of a motion under section 2, a class proceeding is the preferable procedure for the resolution of common issues under clause (1) (d) only if, at a minimum,

a. it is superior to all reasonably available means of determining the entitlement of the class members to relief or addressing the impugned conduct of the defendant, including, as applicable, a quasi-judicial or administrative proceeding, the case management of individual claims in a civil proceeding, or any remedial scheme or program outside of a proceeding; and

b. the questions of fact or law common to the class members predominate over any questions affecting only individual class members.

49Pursuant to s. 6 of the CPA, the court shall not refuse to certify a proceeding solely on any of the following grounds:

1. The relief claimed includes a claim for damages that would require individual assessment after determination of the common issues;

2. The relief claimed relates to separate contracts involving different class members;

3. Different remedies are sought for different class members;

4. The number of class members or the identity of each class member is not known; and

5. The class includes a subclass whose members have claims or defences that raise common issues not shared by all class members.

Section 5(1)(a): The pleadings disclose a cause of action

50The court will deny certification under s. 5(1)(a) if it is “plain and obvious” that the pleadings disclose no cause of action: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477, at para. 63. The court will address defective pleadings at the certification stage to serve the policy goals of efficiency, access to justice and certainty in the law: Owsianik v. Equifax Canada Co., 2022 ONCA 813, at para. 4.

51The court applies the following on a motion to strike a pleading as well as for the test in s. 5(1)(a):

a. No evidence is admissible;

b. All allegations of fact pleaded are assumed to be true unless they are patently ridiculous, manifestly incapable of proof, or amount to bald conclusory statements unsupported by material facts;

c. Cases that are unique or novel, that involve matters of law that are unsettled, or that require a detailed analysis of the evidence should not be resolved without a full factual record;

d. The pleading must be read generously to allow for drafting deficiencies and the plaintiff's lack of access to key documents and discovery information. The court should err on the side of permitting an arguable claim to proceed to trial;

e. A plaintiff cannot rely on the possibility that new facts may be discovered; it must plead the material facts upon which it relies; and

f. The pleading will be struck only if it is plain and obvious that the plaintiff cannot succeed or, in other words, if the claim has no reasonable prospect of success. [Citations omitted.]

Wright v. Horizons ETFS Management (Canada) Inc., 2020 ONCA 337, 448 D.L.R. (4th) 328, at para. 58.

52Claims which rest entirely on a question of law may be particularly well-suited to determination at the pleading stage. The Court of Appeal made this point in the context of a cause of action for the tort of intrusion upon seclusion as applied to the holder of confidential information and a resulting data breach in Owsianik at paras. 47-49.

53The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeds out hopeless claims, and ensures that claims with some chance of success go on to trial.

54The plaintiffs submit that they have adequately pleaded three causes of action. The defendants submit that there is no credible claim pleaded against Intuit Inc. and raises issues with the balance of the pleading. Intuit seeks dismissal of the certification motion for failing to meet the test under s. 5(1)(a).

55I discuss each of those issues in turn.

Has the plaintiff pleaded a credible claim against Intuit Inc.?

56Intuit Inc. submits that the plaintiff fails to plead wrongdoing by Intuit Inc. that is distinct from the pleaded wrongdoing by Intuit Canada. Intuit submits that the plaintiff is improperly asserting a “group enterprise theory of liability.” Intuit submits that a parent company should not necessarily be treated as an entity that is interchangeable with its subsidiary because Canadian law accords corporations separate legal identities: Yaiguaje v. Chevron Corporation, 2018 ONCA 472 at paras. 68.

57However, where a subsidiary is under the complete control of the parent company and the subsidiary is simply a conduit to avoid liability, the parent company may not be able to shield itself from liability: Martin v. Astrazeneca Pharmaceuticals Plc, 2012 ONSC 2744 at paras. 122-125, aff’d 2013 ONSC 1169 at para. 6.

58Ms. Rodd’s pleading alleges improper conduct on the part of both defendants. At paragraph 3 of the fresh as amended statement of claim, she alleges that “The Defendants, Intuit Canada ULC and Intuit Inc. (collectively “Intuit”) advertise, promote, market, distribute and sell online tax preparation software under the TurboTax trade name”. She does not rely simply on the corporate relationship. She alleges conduct on the corporate defendants who acted together to take steps to market and profit from the Canadian software, which breached consumer protection and competition legislation in Canada.

59The claim pleads the following corporate relationship between Intuit Inc. and Intuit Canada and their actions as part of a business unit follows:

The Defendants

10. The Defendant Intuit Inc. is a multinational corporation incorporated under the law of Delaware, USA. It is headquartered in Mountain View California.

11. The Defendant Intuit Canada ULC is a wholly-owned Canadian subsidiary of Intuit Inc., headquartered in Edmonton, Alberta.

12. The Defendants were organized in such a way that they functioned as an ongoing, organized, and continuing business unit sharing common purposes and objectives with overall management. Each of the Defendants was the agent of the other and each is vicariously responsible for the acts and omissions of the others.

13. At all material times, the Defendants shared the common purpose of advertising, promoting marketing, distributing, and selling online tax preparation software under the TurboTax trade name, which is owned by Intuit Inc. in both Canada and the U.S.

60I am satisfied that the claim adequately pleads liability on the part of both corporate defendants. The pleaded fact of their related relationship does not amount to an allegation of guilt by association. The pleading alleges that both defendants engaged in the misleading advertising to market the software owned by Intuit Inc. The pleading asserts control by Intuit Inc. over its wholly-owned subsidiary, Intuit Canada. It alleges a corporate organization that functioned as an “organized and continuing business unit sharing common purposes and objectives with overall management.” This is sufficient to meet the test in s. 5(1)(a).

The Consumer Protection claims

61The first cause of action arises from the plaintiff’s pleading of consumer protection legislation in Ontario, Québec, Alberta, Saskatchewan, Manitoba, Nova Scotia, PEI, Newfoundland, and British Columbia.

62Under the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A, Ms. Rodd has pleaded a claim for a remedy of damages under s. 18(2). She alleges that Intuit committed an unfair practice as defined by the Consumer Protection Act by making false, deceptive, unconscionable, and misleading representations that all consumers prior to 2021 could file their taxes for “free.” Similarly, she alleges that for tax years 2021 and following, Intuit falsely represented that all consumers with “simple tax returns”, could file their taxes for “free” using the tax software.

63Ms. Rodd alleges that these representations were misleading. She pleads that only a subset of users were able to navigate the software and file for free. To discover this, consumers had to invest time and effort preparing their tax returns using the software before learning that they must pay to complete their returns. Her pleadings allege:

a. A consumer agreement: The plaintiff pleads privity under the Ontario, as well as comparable PEI and New Brunswick consumer protection legislation. She has pled that Intuit distributed and sold the tax software to, and entered into contracts with, the plaintiff and putative class members;

b. Causation: The plaintiff pleads a consumer agreement during an ongoing unfair practice by the defendants, which satisfies the causation requirement under the Consumer Protection Act: Hoy v. Expedia, 2022 ONSC 6650 at paras. 147-148; Ramdath v. George Brown College of Applied Arts and Technology, 2015 ONCA 921 at para. 90.

c. Damages in Lieu of Recission: The plaintiff pleads that recission is not available because return of the goods or services is no longer possible. Instead, Ms. Rodd pleads that the defendants owe her and the putative class members damages in the amount by which she and the class members’ payment under the agreement exceeds the value that the goods or services had to them.

d. Punitive Damages: Where available under consumer protection legislation, Ms. Rodd has pleaded a claim to punitive damages.

e. Notice: Ms. Rodd has pleaded that where her claims under consumer protection legislation require notice, it should be waived. In support of her submission, the plaintiff relies on Bernstein, “[o]nce the Class Members have demonstrated that they have viable claims, it would not be in the interests to strictly apply the notice requirements of the Consumer Protection Act, 2002”: Bernstein v. Peoples Trust Company, 2019 ONSC 2867 at para. 291.

64Ms. Rodd submits that the claim pleads all of the relevant consumer protection statutes. She has pleaded reliance where required. In doing so, she acknowledges that reliance amounts to an individual issue, which would come into play only if the common issues of misleading advertising are decided in favour of the class, and if her parallel claims brought under the Competition Act, and which do not require reliance, are not substantiated.

65For the provinces where consumer protection legislation does not create a statutory cause of action, Ms. Rodd submits that the alleged breaches support her pleading in unjust enrichment: Her position at trial will be that an unlawful contract under consumer protection legislation cannot provide a “juristic reason” for the enrichment of the defendants: Pro-Sys at para. 88.

66Intuit submits that the plaintiff has not properly pleaded her claim under the various consumer protection statutes because the statement of claim fails to include the operative sections under each statute. Intuit submits that no material facts have been pleaded to substantiate reliance as required under the British Columbia, Alberta, Saskatchewan, and Newfoundland and Labrador statues. In the case of Prince Edward Island, Intuit submits that the unfair practice must have induced the consumer to enter into the agreement. Intuit submits that because the plaintiff has failed to address these nuances across the array of applicable provincial legislation, the pleading must fail under s. 5(1)(a).

67The plaintiff has filed a fresh as amended statement of claim which lists the relevant consumer protection statutes, along with the sections on which the plaintiff relies. The pleading at paragraph 29(c) of the fresh as amended statement of claim pleads, “…the Defendants knew or ought to have known the Plaintiff and Class members would rely on the Free Representations to their detriment.” This is sufficient.

The Competition Act claims

68The plaintiff submits that she has adequately pleaded that the “free” and “free for simple returns” representations made by Intuit were materially false, deceptive, and misleading and therefore amounted to a breach of s. 52 of the Competition Act, including s. 52(1.3). She pleads that she and the putative Class Members are entitled to damages under s. 36 of the Competition Act.

69Section 52(1) prohibits a company that is promoting the supply or use of a product from “knowingly or recklessly mak[ing] a representation to the public that is false or misleading in a material respect.” The plaintiff has pled that Intuit’s “free” and “free for simple tax returns” representations were “materially false, deceptive and misleading about the actual costs of using the online product for preparing consumer tax returns.”

70Section 52(1.3) prohibits “drip pricing”: “the making of a representation of a price that is not attainable due to fixed obligatory charges or fees constitutes a false or misleading representation ….”

71This practice was described by the Competition Tribunal as a “retailer advertising a product or a service at a stated price but then adding one or more additional amounts to that price, so the consumer actually has to pay more than the originally advertised amount to purchase the product or service”: Canada (Commissioner of Competition) v Cineplex Inc, 2024 CanLII 93716 (CT), 2024 Comp Trib 5 at para. 310 (upheld by the Federal Court of Appeal in Cineplex Inc. v. Commissioner of Competition, 2026 FCA 10 (Cineplex, FCA).

72In Cineplex FCA, the Federal Court of Appeal described drip pricing provisions as a “specific subcategory of false or misleading price representations” which partition information about the cost of a good or service. The policy objective behind the legislation regulating these practices is to ensure that consumers know with “clarity and transparency” the price of a good or service: Cineplex, FCA at para. 173.

73The Federal Court of Appeal considered what is meant by “attainable” in the context of movie pricing which charged an on-line fee to purchase tickets, which was not paid by purchasers at the box office. It concluded that even if the advertised price is “attainable” to a subset of consumers, that is not the test: Cineplex at paras. 193-195.

74Ms. Rodd submits that similar reasoning applies to Intuit’s submission that its software was available for “free” before 2021, and for those with simple returns after 2021. She submits that even if some users were able to navigate Intuit’s software to file free (pre-2021) or had sufficiently simple returns to file after 2021, this does not mean the advertising and the design that led others to “fail” to be able to file free does not breach the Competition Act. The question is whether she has adequately pleaded a false or misleading representation of a price that is not attainable to some customers “due to fixed obligatory charges or fees.”

75The plaintiff pleaded that the “free” and “free for simple tax returns” representations breached s. 52(1.3) because they “constituted representations that a specific price (free) was attainable, when it was not attainable due to fixed obligatory fees and charges imposed on the Class Members by the Defendants …”.

76Section 36(1) creates a civil cause of action for a person who has suffered loss or damage as a result of conduct that contravenes any provision of Part VI of the Competition Act. Section 36 does not require proof of detrimental reliance. The Plaintiff need only plead that “that the misrepresentation caused [her] to acquire less value than [s]he expected to acquire”: Drynan v. Bausch Health Companies Inc., 2021 ONSC 7423, at paras. 179-181; Rebuck v. Ford Motor Company, 2022 ONSC 2396 at para. 35. The damage alleged by Ms. Rodd in her pleading is that she spent more on a tax filing service than she anticipated based on Intuit’s representations.

77Intuit submits that Ms. Rodd’s Competition Act claim fails to plead two essential elements to find liability under s. 52(1): intentionality and causation between the misrepresentation and damages. As a result, Intuit submits this claim is certain to fail.

78I disagree. The plaintiff must prove the mental element for s. 52(1) at trial: Rebuck at paras. 43, 45-46. The pleading will be sufficient if it sets out the material facts that the plaintiff relies upon to support her claim. The plaintiff has done so. She has alleged that Intuit implemented a “free-to-fee” scheme to bait customers with the offer of free tax filing services that leads to an apparent required fee to complete their return and file. She has alleged deceptive marketing by Intuit. Ms. Rodd connected her experience in attempting to file “free” but instead having to pay to complete her tax filing, to the deceptive marketing and intentional design of the tax software. In conjunction with the alleged breach of the Competition Act and her other claims, Ms. Rodd pleads that Intuit “actively, intentionally and purposively concealed the falsity of its own advertising from the class.” The entire pleading is rests on the allegation that Intuit intentionally designed its tax software to function as it did.

79Likewise, Ms. Rodd alleges that the design of the software caused her to spend money on the tax software that she did not wish to spend, having been attracted by the promise of it being “free, free, free.” Ms. Rodd explicitly alleges causation in her claim: “The Free Representations caused the Plaintiffs and Class Members to spend more on tax return preparation than they expected – instead of a free online service, as advertised by the Defendants, many Class Members were forced to make substantial purchases to complete their tax return preparation.” While Intuit submits there was no detriment, because the purchasers received the benefit of the tax filing software, this misconstrues the nature of the claim. The claim is based on the outcome of deceptive practices and manipulative marketing leading to the unwilling purchase of the Intuit software, after believing it was available free of charge. Ms. Rodd alleges that she paid more than she expected to pay as a result of the representations.

80I am satisfied that the plaintiff’s pleading for relief under the Competition Act meets the requirements of s. 5(1)(a).

Unjust enrichment

81Ms. Rodd pleads that Intuit was unjustly enriched by the sale of the tax filing software, that she and the putative class members suffered a corresponding deprivation and they are thus entitled to restitution of the payments they made to the defendants, or alternatively, to disgorgement of the profits from the defendants.

82The facts pleaded include allegations of: a) an enrichment of or benefit to Intuit in the form of tax software revenue, b) a corresponding deprivation in the form of payments by the plaintiff to file her tax returns on the software website, and c) the absence of a juristic reason for the enrichment due to the false, misleading, and deceptive nature of the impugned representations and the breaches of the consumer protection legislation and the Competition Act.

83Intuit submits that the plea in unjust enrichment is doomed to fail because there was no corresponding deprivation. Given that the plaintiff received the benefit of the software and that she accepted the terms of service, there is a juristic reason for its enrichment by receiving the revenues from the sale of the tax software.

84Intuit’s submission may amount to a trial defence, but it is not a reason to find that the pleading is flawed, and the action is doomed to fail: Pro-Sys at para. 88. The plaintiff has pleaded a deprivation. Intuit does not agree. This is an argument available to Intuit at trial, but it is not an answer to a valid pleading. The same logic applies to Intuit’s defence that it had a valid contract with consumers. Ms. Rodd has pleaded and must prove at trial that the consumer agreements that she and the putative class members entered into with Intuit arose as a result of Intuit’s breach of consumer protection legislation.

Punitive damages

85Intuit submits that the plaintiff has used boilerplate language without particulars to assert her claim for punitive damages. Intuit relies on Grozelle v. Corby Spirit and Wine Limited, 2023 ONSC 7212 in which Akbarali, J. described a pleading in punitive damages as “bald”: para 39. As Akbarali, J. noted at para. 38 of Grozelle, a pleading in punitive damages must meet the standard set out by the Supreme Court of Canada in Whiten v. Pilot, 2002 SCC 18, [2002] 1 S.C.R. 595, at paras. 86-87. The facts alleged must warrant punitive damages and “should be pleaded with some particularity.” A pleading must explain why the conduct is appropriate for an award of punitive damages. Punitive damages exist to punish a defendant for its “egregious conduct”: Whiten at para. 92.

86This is the case with the pleading in the case at bar. At paras. 40-41 of her statement of claim, the plaintiff alleges:

VIII. PUNITIVE DAMAGES

40. The Plaintiff pleads that the Defendants have acted in such a high-handed, wanton and reckless manner, without regard to consumer protection and honesty in advertising, as to warrant a claim for punitive and aggravated damages.

41. In particular, the Defendants’ conduct in the advertising, promoting, marketing, distributing and selling online tax preparation online software under the TurboTax, and the facts pleaded above regarding Defendants’ advertising campaigns and false Free Representations, were entirely without care, deliberate, callous, disgraceful, willful, and an intentional disregard of the Class Members’ rights and economic interests, indifferent to the consequences, and motivated by economic considerations such as maintaining revenue and market share.

87Intuit submits that this is boilerplate, conclusory language. I agree. The pleading does not connect any of Intuits’ acts, other than the breach at the heart of the action, to the claim for punitive damages. The plaintiff’s descriptions of Intuit’s actions as “callous” or “disgraceful” are unsupported by any facts particular to these defendants or the damage done to the class that gives meaning to the claim for punitive damages.

88I find that the plaintiff has failed to plead sufficient particularity required for punitive damages. I decline to certify a question on punitive damages.

Section 5(1)(b): There is an identifiable class of two or more persons that would be represented by the representative plaintiff.

89In determining whether there is an identifiable class, the court asks whether the plaintiff has defined the class with reference to objective criteria. This ensures that class members can identify themselves without reference to the merits of the claim. The class must not be unnecessarily broad, although the members of the class need not have the same interests. The class definition should relate to the common issues raised by the claim: Drynan v. Bausch Health Companies Inc., 2021 ONSC 7423, at para. 212, citing Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, at para. 38.

90The plaintiff proposes to define the class as follows:

All consumers who purchased the TurboTax online software, and any related services, to prepare and/or file their Canadian taxes during the Class Period (the period beginning on January 1, 2015), and their estates, executors, successors, or assigns, other than Excluded Persons (means the Defendants, any entity or division in which the Defendants have a controlling interest, and their legal representatives, officers, directors, assigns, heirs and successors).

91The plaintiff submits, that the proposed class definition meets the statutory requirement because it is defined by objective criteria. Intuit submits that the class definition is inappropriate and too broadly stated. The potential class members will include, for example, those consumers who may have decided to purchase an upgraded tax software product from Intuit Canada, those who purchased a paid product from the beginning or those who never saw or relied on any “free, free, free” advertising. As such, Intuit submits that the class definition is “untethered” from the common issue of the alleged misleading advertising of the tax software.

92Intuit submits that the misleading advertising classes relied on in other actions by the plaintiff are distinguishable. For example, in Drynan, the “Cold FX” case, the defendant made representations to every consumer that the product was “clinically proven”: at para. 6. No purchaser received the promised benefit. Justice Glustein found some basis in fact to certify the claims under the Competition Act, and the Ontario Consumer Protection Act which do not require proof of reliance or even that class members saw the advertising: Drynan, at paras. 237-239.

93The question in Drynan, as it is here, is whether there is a relationship between the purchasers of the service and the period when the alleged unlawful practices were taking place: Drynan, at para. 239. This is so for even “loyal” or “repeat” customers, and for those who did not view or rely on the unfair advertising for the claims under the Competition Act or for provincial consumer protection legislation that does not require reliance. It is the timing of the core representation relative to the purchase that matter. The truth of the representation can be determined for all of the class members: Drynan, at para. 277.

94The plaintiff’s proposed class definition properly excludes users of the tax software who did not purchase it. Her definition excludes users before tax year 2021, who were able to navigate the software to the end without paying for an upgrade. After tax year 2021, the class definition does not include users who met Intuit’s definition of a “simple tax return” and were able to file without payment.

95The court may approve a class definition that is based on objective parameters linked to the common issues despite including individuals who may not have suffered damages. Those distinctions can be addressed using appropriate damages methodologies or evidence at the individual stage of the trial: Pro-Sys, at paras. 111-112; Taylor v. Canada (Minister of Health), [2007] O.J. No. 3312, 285 D.L.R. (4th) 296 (S.C.J.), at para. 62; Ramdath v. George Brown College, 2010 ONSC 2019, at para. 95, dismissed on other grounds, 2013 ONCA 468, at para. 18; Ramdath v. George Brown College of Applied Arts and Technology, 2012 ONSC 6173; 113 O.R. (3d) 531 at para. 88; Bennett v. Lenovo, 2017 ONSC 5853 at para. 79; Kalra v. Mercedes Benz, 2017 ONSC 3795 at paras. 38-39.

The Limitation Period and the Class Period

96Intuit submits that if the action otherwise meets the test for certification, and the class definition is approved, the class period must begin no earlier than August 25, 2020, to meet the class wide presumptive limitation period. Intuit relies on Bernstein v. People’s Trust Company, 2017 ONSC 752 at paras. 100-101 for their position that the court should enforce a presumptive two-year limitation period within the class definition.

97In Bernstein, the certification judge identified a conflict that could arise between members of the class with presumptively statute-barred claims and those whose claims fell within the two years prior to the commencement of the claim. However, in Robson v. Federal Express Canada Corporation, 2025 ONCA 831 at para. 97, the Court of Appeal rejected this reasoning in Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City), 2015 ONCA 572, 387 D.L.R. (4th) 603, at para. 46-47. In Amyotrophic, at paras. 46-47, the Court of Appeal found that sub-classes could be used to address issues of presumptive limitation periods. Given this jurisprudence, I would not apply Bernstein to the proposed class period.

98Further, Ms. Rodd has pleaded fraudulent concealment. Her proposed common issues include a question on discoverability, which will allow the trial judge to make findings on the evidence as to whether the marketing and operation of the tax software concealed the misrepresentations.

Findings on the Class Definition and Class Period

99To conclude, the proposed class definition is defined by objective criteria and includes those who purchased the tax software. It does not rely on the merits for its definition, nor does it create conflicts among class members who may have different damages claims. It excludes those who were able to file for “free.” Questions of discoverability have been pleaded and can be determined at trial; I decline to shorten the class period.

100I find that the plaintiff has met the test in s. 5(1)(b) of the CPA.

Section 5(1)(c): Do the plaintiff’s claims raise common issues?

Are there common issues on liability?

101I apply the following well-established principles to the proposed common issues:

(a) There must be “some basis in fact” to establish that the claim raises a common issue, a test which the plaintiff is able to meet by tendering minimal evidence that the proposed common issues exist and can be addressed class-wide;

(b) Certification is decidedly not a “merits” test: it focuses on the form of the action and not on whether it will succeed, or even whether the plaintiff has a prima facie case;

(c) The certification judge need not resolve conflicting facts and evidence, although the court must exercise a gatekeeping function;

(d) A common issue will be a “substantial ingredient” of each claim if its resolution will move the litigation forward and is able to be extrapolated to all class members; and,

(e) The court must take a purposive approach to s. 5(1)(c) to further the objectives of the CPA;

See: Carcillo v. Ontario Major Junior Hockey League, 2025 ONCA 652 at para. 41; Price v. Smith & Wesson Corporation, 2025 ONCA 452, 178 O.R. (3d) 597, at para. 99; Richard v. Canada (Attorney General), 2025 ONCA 713 at para. 49, Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3, at para. 46; Pro-Sys, at para. 99; Hollick v. Metropolitan Toronto (Municipality), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 16; Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718, 84 C.C.L.I. (5th) 124, at para. 86.

102Ms. Rodd submits that the liability questions under the federal and provincial legislation are common and amenable to class-wide determination, without reference to individual consumer experiences or evidence. She submits that her evidence of the advertising used by Intuit, its repetition of the word “free” without qualification, and her experience with having to pay to continue after beginning to use the tax software, is some basis in fact to establish that the “free” ads were misrepresentations.

103Further, Ms. Rodd submits that Intuit’s shift to “free for simple tax returns” is likewise misleading because of Intuit’s vague, ambiguous, and unclear use of the phrase “simple tax returns” without providing all of the information needed for consumers to know whether their tax situation would qualify before starting the filing process.

104Ms. Rodd submits that in both of Intuit’s marketing scenarios, a trial will determine whether these were “unfair practices” or “false, misleading or deceptive” from the perspective of the “average” consumer. She submits that this is the test to be applied at the common issues trial.

105Intuit submits that the plaintiff has not provided “some basis in fact” to show that the common issues for its liability exist. Intuit relies on evidence from surveys, on-line reviews, and its cross-examinations of Ms. Rodd and Mr. Barker as cumulative evidence that:

i. Hundreds of thousands of users started in the free program, then paid to file and returned in subsequent years to use the tax software;

ii. Many more users returned because they had done so in the past, and not because they “saw/heard an ad;”

iii. There is no evidence from the plaintiff’s affiants as to what specific ad they viewed before using the tax software; and

iv. The customer reviews gave high reviews (4.6/5 on average), and 95% of users said they would recommend the tax software to a friend.

106The plaintiff responded by attaching a set of Intuit’s on-line reviews which include user complaints about Intuit’s forced upgrades and an overly complicated interface, including from individuals who identify as low-income Canadians. Those reviews echo the concerns of Ms. Rodd and Mr. Barker, which satisfies the commonality of their experience. This evidence received from both sides, must be applied cautiously at this stage because reviews and survey responses are effectively hearsay, without external guarantees of reliability. On-line reviews may be manipulated in quantity or quality. As the plaintiff points out, the survey that Intuit relies upon to suggest that most users returned for reasons other than advertising was for two tax years with an apparent response rate of .5%. Further, the answers are not relevant to the causes of action that do not require the representations to be the detrimentally relied upon by the class members, or to be the “main cause” of class members choosing to purchase the tax software.

107Certification is not a trial: Rebuck at para. 50; Good v. Toronto Police Services Board et al., 2014 ONSC 4583 at paras. 52-61. The sampled reviews tendered on this motion reveal that there will be issues for trial. They provide a preview of the parties’ positions. However, given the nature of the advertising, the direct evidence of the users’ experiences, and the expert evidence of Dr. Osbourne as to the behavioural impact of “friction” and “sludge” on customer-users of on-line software, I find that the plaintiff has adduced sufficient evidence that there is some basis in fact on the question of whether Intuit misled purchasers of its products, and in doing so breached consumer protection legislation, the Competition Act, or alternatively, whether Intuit was unjustly enriched by its conduct toward consumers.

108Finally, Intuit’s submissions as to the worth of its tax software and generally positive reviews from a subset of users miss the point. This is not a defective product action, nor is it a negligence claim: the software worked and assisted users in filing their Canadian tax returns. The underlying issue is whether Intuit’s marketing as to price was misleading, contrary to competition law and consumer protection law.

Are there common issues in damages?

109I have addressed the issue of punitive damages above, leaving the questions of whether to certify common issues in aggregate damages and for the remedy of disgorgement.

Aggregate Damages

110Ms. Rodd submits that a question in aggregate damages should be certified to be answered only if any of the common questions on liability under consumer protection legislation or the Competition Act are resolved in her favour:

If the answers to questions (3) or (5) is yes, and/or the answer to question (7) is yes, can the claims of the class members be assessed on an aggregate basis? If so, in what amount?

111Ms. Rodd submits that the courts routinely certify aggregate damages questions involving allegations of consumer protection legislation, because there is no need to consider the understanding of each consumer: Ramdath, 2015 ONCA 921, at para. 76; Drynan at para. 343; Robson v. Federal Express Canada Corporation, 2025 ONCA 831 at paras. 79-86; Rebuck at paras. 90-93; Nelson v. Telus Communications Inc. (Part 3), 2021 ONSC 24 at paras. 76-90, 108; Agnew-Americano v. Equifax Canada Co., 2019 ONSC 7110 at paras. 335-340; Cullaton v. MDG Newmarket Inc., 2019 ONSC 6432 at paras. 107-130; Tocco v. Bell Mobility Inc., 2019 ONSC 2916 at paras. 38, 47.

112Section 24(1) of the CPA provides for aggregate damages in class proceedings as follows:

Aggregate assessment of monetary relief

24 (1) The court may determine the aggregate or a part of a defendant’s liability to class members and give judgment accordingly where,

(a) monetary relief is claimed on behalf of some or all class members;

(b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant’s monetary liability; and

(c) 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.

113The plaintiff submits that the nature of the claim, and the proposed methodology provided in the Edwards opinion support a question on aggregate damages. If the trial judge makes findings in favour of the plaintiffs, then the defendants’ data and known inputs as to revenue, profit, payments, and status of payments are expected to be available in the aggregate from Intuits’ data. Justice Glustein relied on similar evidence in Drynan at paras. 73-76.

114Intuit submits that the aggregate damages should not be certified because Mr. Edwards’ methodology fails to account for its defences that not every class member saw the representations, relied upon the representations, or began the process of filing for “free” and were then “required” to pay to complete their filings. Intuit put none of these scenarios to Mr. Edwards because it chose not to cross-examine him. The flawed “assumptions” which Intuit relies upon are its submissions and the findings it will seek at trial to defeat liability. If that is the case, the damages question will be moot. If Intuit is liable for representations that do not require reliance, then the question of aggregate damages can proceed using the type of data available and identified by Mr. Edwards. I decline to find that his opinion is therefore based on flawed assumptions.

115The courts commonly include aggregate damages questions in orders for certification. As the Supreme Court of Canada observed in Pro-Sys at para. 134:

The question of whether damages assessed in the aggregate are an appropriate remedy can be certified as a common issue. However, this common issue is only determined at the common issues trial after a finding of liability has been made. The ultimate decision as to whether the aggregate damages provisions of the CPA should be available is one that should be left to the common issues trial judge. Further, the failure to propose or certify aggregate damages, or another remedy, as a common issue does not preclude a trial judge from invoking the provisions if considered appropriate once liability is found. [Emphasis added.]

116I apply this reasoning to the circumstances in this case. I certify the proposed question in aggregate damages.

Disgorgement

117Intuit submits that the plaintiff’s common issue for a declaration for disgorgement should not be certified given the decision of the Divisional Court in Hoy v. Expedia Group, Inc., 2024 ONSC 1462 at paras. 196, 202, 274-275.

118The Divisional Court in Hoy acknowledged that while disgorgement may be available as a remedy under consumer protection legislation, it will only be available in limited circumstances, including evidence of harm to individual consumers: Hoy at para. 64. The Divisional Court’s view is founded on the decision of the Supreme Court of Canda in Atlantic Lottery, where the Court found that disgorgement for breach of contract may be awarded in exceptional circumstances where, a) the plaintiff’s interest cannot be vindicated by other relief, and b) the plaintiff has a legitimate interest in preventing the profit-making activity of the defendant: Atlantic Lottery Corp. Inc v. Babstock, 2020 SCC 19 para. 52

119In Drynan, Glustein, J. found that Atlantic Lottery did not foreclose disgorgement in causes of action other than contract, and thus, it was not beyond doubt that disgorgement could be available for “unlawful conduct” arising from a breach of the Consumer Protection Act or the Competition Act: Drynan at paras. 352-358.

120If the trial judge finds that the loss to the purchasers is too difficult to quantify, there may be a basis to vindicate the legitimate interests of consumers by preventing wrongful profit-making activity. Thus, without deciding the issue, I conclude that it is sufficient for certification to find that a compensatory damage approach may be available.

Section 5(1)(d): Preferable Procedure

121The court must be satisfied that a class proceeding would be the preferable procedure for the resolution of the common issues. This inquiry is directed at whether the class proceeding would be a fair, efficient, and manageable way to advance the claim, and whether the class proceeding would be preferable to other procedures for resolving the common issues. The analysis is conducted with reference to judicial economy, access to justice, and behaviour modification: Hollick at paras. 27-28; Banman v. Ontario, 2023 ONSC 6187 at paras. 313-322.

122Further, CPA s. 5(1.1) requires that the court find that “at a minimum” a class proceeding is:

(a) …superior to all reasonably available means of determining the entitlement of the class members to relief or addressing the impugned conduct of the defendant, including, as applicable, a quasi-judicial or administrative proceeding, the case management of individual claims in a civil proceeding, or any remedial scheme or program outside of a proceeding; and

(b) the questions of fact or law common to the class members predominate over any questions affecting only individual class members.

123The plaintiffs submit that this claim is “fair, efficient and manageable” as a class proceeding, because the questions of liability relate wholly to the conduct of the defendants. Claims for breaches of consumer protection legislation and the Competition Act are often found to be preferable because of they afford access to justice and provide judicial economy: Drynan at paras. 375-399.

124Intuit submits that there are a host of individual issues that the court must address, including which class members saw an advertisement, how they understood the ad, what they read on the tax software website, and why they used the service. Intuit submits that there are individual trials with multiple issues.

125I disagree. Intuit’s submission presupposes that liability will require evidence of individual consumer experience, in the form of reliance on its advertising. That is not the case in the action as framed, for the reasons discussed above. The plaintiff has not brought her claim in negligent misrepresentation but under consumer protection and competition law statutes which focus on the practices and representations of the defendants. Depending on the findings at trial, the question of damages may be capable of calculation in the aggregate.

126I recognize that there may be some individual issues following the common issues trial. These include the need for proof of reliance in those provinces with consumer protection legislation that require such proof. There may be individual issues around discoverability and limitation periods. However, in my view, these questions do not overwhelm the predominant common issues, and the reality borne out by Intuit’s statistics for 2021 and 2022. The alternative would be thousands of duplicative proceedings seeking insignificant amounts per class member for the same misconduct: Kalra at para. 76.

127I find that the common issues predominate and that a class proceeding is the preferable procedure. There are no proposed viable alternatives to recover small amounts of damages per user that are alleged to have been suffered for a service that allegedly falls off-side legislation designed to protect consumers, to ensure fair markets and clear pricing.

128The plaintiff has established the criteria for preferability under s. 5(1)(d) and under s. 5.1(1).

Section 5(1)(e): The Proposed Representative Plaintiff

129A proposed representative plaintiff must be able to represent the class fairly and adequately. They must have developed a plan for proceeding and not have a conflict with the class. They must be prepared and able to vigorously represent the interests of the class: Rosen v. BMO Nesbitt Burns Inc., 2013 ONSC 2144, 9 C.C.E.L. (4th) 315, at para. 73: CPA, s. 5(1)(e).

130The proposed representative plaintiff is Megan Jessica Zitani Rodd. She has willingly taken on the role of representative plaintiff and has produced a litigation plan which proposes a process to take this litigation to trial. Intuit submits that she has not had a “representative” experience, because she paid for the tax software after she attempted to file for free, perhaps because she did not realize what she was clicking. This submission ignores the thrust of the claim, that the software was designed to be confusing, with pop-ups and offers to upgrade which led users to choose to pay after investing time inputting their information. This was a contrast to the “100% free” and “free, free, free” representations in video and on-line advertising without disclaimer. Ms. Rodd gave in, once she had paid and continued to pay after she had invested in using the tax software for six more years, until she researched and found an alternative provider.

131The defendants initially submitted that Ms. Rodd was not a suitable representative plaintiff because her claim was brought out of time, however counsel determined prior the motion that the suspension of limitation periods during 2020 applies and therefore, Ms. Rodd’s claim was brought in time.

132I conclude that Ms. Rodd is an appropriate representative plaintiff and that she has met the test under s. 5(1)(e).

VI. Conclusion

133For the reasons above, I conclude that the plaintiff has satisfied the criteria set out in s. 5(1) of the CPA. I grant the motion and certify this action as a class proceeding pursuant to the CPA.

134I appoint Megan Jessica Zitani Rodd to be the representative plaintiff of the class pursuant to s. 5 of the CPA.

135If the parties are unable to agree as to costs of the motion for certification, they may propose a timetable for making brief submissions, in writing.

Leiper J.

Footnotes

1. 1A form of pricing prohibited by Section 52(1.3) of the Competition Act in which a retailer advertises a product or a service at a stated price, but then adds one or more additional amounts to that price so the consumer actually has to pay more than the originally advertised amount to purchase the product or service.