Canadian Lawyer InHouse

NOVEMBER/DECEMBER 2015 8 INHOUSE News Roundup A roundup of legal department news and trends "As Justice Adair says in the Unlu decision, that claim isn't amenable to a class-wide res- olution and the plaintiffs had conceded that, so she finds there is no common issue for s. 171 damages as a result — it's just an inher- ently individual claim," says Reinertson. Plaintiffs have also been advancing claims under s. 172, which is different from damag- es. An individual doesn't have to show dam- age in the traditional sense but have some interest in the money before he or she can get a refund. In Unlu, the plaintiffs couldn't establish any kind of interest in the money or right to damages under the B.C. Consumer Protection Act under the statute or common law, so there was no right to a restitution order remedy. "What's left is this weird s. 172 (1), which gives you the right for any person to seek de - claratory or injunctive relief, and the court has now said in a couple of cases — in Unlu and Clark — that, if you are seeking just de- claratory or injunctive relief and you aren't seeking damages for the whole class because you don't have a right to them, a class action is not an appropriate way to proceed. It's not efficient," says Reinertson. There may be other avenues for plaintiffs to explore such claims. Plaintiffs can pursue them on an individual basis and where there is damage or loss, but the problem in Unlu and other cases like it such as Ileman and Clark is they alleged misrepresentation but the consumers didn't suffer any actual loss. "The consumer knew what the price was for the ticket before they made their final decision. If you didn't want to pay X number of dollars for your airline ticket, you had the information you needed to make your deci - sion," she says. The plaintiffs said that, in using a code, the airlines classified the amounts payable pursuant to those codes as "taxes" payable to a third party, but, in fact, they collected the money and retained it without paying out to third parties. The plaintiffs sought damages and a restoration order under the BPCPA and other remedies on the basis the airlines had been unjustly enriched. "Why this is so interesting is because it is explaining the mechanics of a statutory ver - sion of waiver of tort," says Michael Rosen- berg, a lawyer with McCarthy Tétrault LLP. "I have long argued the waiver of tort requires exactly that — a proprietary interest in the funds that are being claimed from the defendant. What the court seems to be saying here is that it's not enough that the defendant took money from the plaintiff and that the way in which the defendant took the money contravened the BPCPA. There has to be some explanation of the unjustness of taking the money from the plaintiff." At the core of it, while there may have been a deceptive business practice, if the consumer would have paid the money any - way then where is the damage done? "There is no harm, no foul, and the court is not going to expend its resources where there does not appear to have been a real injury to any plaintiff," he says. IH At DW 2 , we know you succeed on the basis of your organization's thinking and ingenuity. To protect that brainwork, count on Green to provide the best in IP/IT legwork. DWW.com Canadian Lawyers, Patent & Trademark Agents After the gray matter's done its work, Green goes into action. DeethWilliams-2_IH_Nov_15.indd 1 2015-10-08 12:57 PM

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